When does 'religious freedom' become protected discrimination?

By Scott Alessi| comments | Print this pagePrint | Email this pageShare
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UPDATE: Arizona Gov. Jan Brewer has vetoed the controversial "religious liberty" bill. Read more here.

Original post:

The campaign for unlimited "religious freedom" gained more ground yesterday when the Arizona legislature passed a bill allowing businesses to refuse service to any customer if the business feels that serving that person would violate their religious beliefs. The bill follows an attempt in Kansas to explicitly allow business owners to refuse service to same-sex couples and similar efforts in a number of other states, as the push to more broadly define the concept of religious liberty continues to spread across the nation.

In the Arizona bill, Reuters reports, "a business owner would have a defense against a discrimination lawsuit, provided a decision to deny service was motivated by a 'sincerely held' religious belief and that giving such service would have substantially burdened the exercise of their religious beliefs." Of course, the term "sincerely held religious belief" is problematic in that it can easily become an umbrella term that covers any of a person's beliefs.

We know that many Catholics, for instance, "sincerely hold" beliefs that are not entirely aligned with the official teachings of the church. And what if you don't belong to a specific church, but you have your own set of "sincerely held" religious beliefs that aren't part of any organized religion? What if those beliefs involve denying service to people based on their ethnic background, their economic status, or their sex?

Critics of the Arizona law, and others like it, are quick to call such efforts a blatant attempt at legally protecting discrimination. Supporters say they're just protecting the First Amendment by letting people follow their religion without any interference.

The only problem with that argument is that, contrary to what some may try to claim, one person's individual right to the free exercise of religion has not always been unlimited. In 1982, Chief Justice Warren Burger wrote in the Supreme Court's majority opinion of United States v. Lee that "not all burdens on religion are unconstitutional," particularly when it comes to the religious liberty of employers. And perhaps the most famous court decision limiting an individual's religious freedom came from Justice Antonin Scalia--a Catholic who has generally been known to defend his church's position in the public square--in the 1990 case of Employment Division v. Smith.

Of course these are complicated cases that define very specific aspects of First Amendment rights, but without getting into a detailed debate over constitutional law, there is clearly a precedent that an individual's rights under the free exercise clause can be limited. Do those limits prevent them from denying service to certain customers because of religious beliefs? That remains to be decided, but the current Supreme Court might give us some idea of their thinking on religious liberty limitations in their forthcoming decision in the Hobby Lobby case. And if bills like the one in Arizona become law, it is only a matter of time before one of them ends up being debated before the court.

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