Daniel in the Lions Den: A Structural Reconsideration of Religious Exemptions from Nondiscrimination Laws Since Obergefell.

• Author: Hersh, Adam K.

Table of Contents Introduction I. An Expansion in Three Forms of Religious Accommodation A. Free Exercise Clause Accommodations B. General Accommodations 1. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. 2. Franciscan Alliance, Inc. v. Burwell 3. A trend toward interpreting RFRA broadly C. Targeted Accommodations II. A Reexamination of the "Third-Party Harm" Doctrine A. Do Targeted Nondiscrimination Accommodations Impermissibly Discriminate Among Religions? B. Do Nondiscrimination Accommodations Impose an Impermissible Degree of Harm on Third Parties? III. A New Establishment Clause Framework for Nondiscrimination Accommodations A. The Establishment Clause Forbids Granting Religious Actors the Discretion to Determine Who Gets Governmental Benefits B. Nondiscrimination Laws Confer a Governmental Benefit on Individuals C. Religious Accommodations from Nondiscrimination Laws Impermissibly Allow Religious Actors a Veto on Distribution of a Governmental Benefit D. Existing Case Law Does Not Foreclose Treating Nondiscrimination Rights as a Governmental Benefit for Establishment Clause Purposes. E. Treating Nondiscrimination Rights as Governmental Benefits Would Invalidate Many Nondiscrimination Accommodations but Leave Most Other Accommodations Intact Conclusion: A Rule Protecting Pluralism Introduction

In its landmark decision recognizing the constitutional right to same-sex marriage in Obergefell v. Hodges, (1) the U.S. Supreme Court included a curious bit of dicta:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. (2) On one reading, this statement is a truism: The Constitution protects the free exercise of religion. (3) What's curious is its mention in a case where the only claim was for a private civil right against state governments. (4) Civil rights judgments do not often come with such disclaimers, even in hot-button areas. (5) Of course, the statement could simply be puffery, but its inclusion by the Court suggests that in the realm of same-sex marriage, "proper protection" for religious liberty might take on new dimensions or require special solicitude.

In the two years since Obergefell, courts and legislatures have started to consider what "proper protection" might mean. Early efforts have largely taken the form of expansive carve-outs from state and federal nondiscrimination laws for religious actors. These actions have not been limited to the marriage context; rather, they appear to be part of a broader reevaluation of the appropriate balance between the rights of equal treatment for LGBT consumers and employees on one hand and the religious exercise rights of businesses and employers on the other.

Courts have principally undertaken this reevaluation through broad interpretations of longstanding accommodations for religious believers. In particular, several prominent district court decisions (some now on appeal) have applied the federal Religious Freedom Restoration Act (RFRA) of 1993 (6) to deny protections for LGBT employees and consumers. In doing so, they have relied heavily on the Supreme Court's logic in Burwell v. Hobby Lobby Stores, Inc., (7) the most recent major case interpreting RFRA, and extended it far beyond the narrow context of contraception benefits at issue there. If this trend continues, it will expand the spaces in which governments must refrain from enforcing generally applicable nondiscrimination laws, and it will ultimately require the Supreme Court to clarify the outer limits of Hobby Lobby.

Legislators, meanwhile, have proposed a rash of bills offering specific accommodations for religious believers in areas involving LGBT rights. (8) These bills vary widely. (9) An interesting feature many of them share, however, is designating enumerated beliefs--for example, "marriage is or should be recognized as the union of one man and one woman" (10)--and protecting any practices consistent with those beliefs across a variety of areas. (11) The most prominent of these bills, and the first to be successfully enacted since Obergefell, is Mississippi's Protecting Freedom of Conscience from Government Discrimination Act, (12) commonly referred to as HB 1523. (13) Mississippi's law is similar to proposed accommodations in other states, and its ultimate fate may serve as a bellwether for those accommodations. HB 1523 was the first successfully enacted religious exemption for private businesses from LGBT nondiscrimination laws. It was also the first to be enjoined by a federal court, on both Equal Protection Clause and Establishment Clause grounds. (14) That injunction was subsequently reversed on justiciability grounds, (15) but the district court decision nonetheless stands as an example for states and other courts to look to as they consider targeted accommodations in the nondiscrimination realm. Ultimately, the religious freedom issues raised in this area may also call for clarification from the Supreme Court.

Scholarly responses considering the limits the Constitution places on religious accommodations from nondiscrimination laws have been robust but largely unsatisfying. Proponents of such accommodations argue that they fall squarely within the "play in the joints" of the First Amendment's Religion Clauses--the recognized flexibility government has, beyond the limits imposed by the Constitution, to both protect religious exercise and prevent establishment of religion. (16) Those proponents argue that accommodations from nondiscrimination laws allow government to ensure that religious exercise is properly protected (17) and that these sorts of protections ensure the continued vitality of religious pluralism by preventing government coercion of religious actors. (18) Opponents claim that these accommodations go too far in allowing harm to third parties, either because that harm elevates certain religious beliefs over others (19) or because it imposes too severe a burden on others. (20)

Both positions are more or less recitations of standard arguments sounding in the Religion Clauses. Most of these arguments were made about contraceptive mandates before Hobby Lobby. (21) To the extent they grapple with the unique features of nondiscrimination law, it is usually only to note that nondiscrimination implicates especially serious equities. (22) But nondiscrimination laws are distinct, both in terms of the burden they impose on regulated parties and the benefit they provide to protected parties, and very few Establishment Clause analyses have grappled in precise terms with these distinctive features. This Note attempts to do so.

Part I assesses the current state of Religion Clauses doctrine as applied to nondiscrimination mandates. It discusses both the statutory and judicial expansions of protection for religious practice, and it explains the doctrinal and structural forces underlying that expansion. Part II turns to the scholarly response to an expanding world of religious nondiscrimination exemptions. It lays out two major schools of thought challenging that expansion, using as its framework the district court decision enjoining Mississippi's HB 1523. (23) In doing so, it doubles as a thorough analysis of that decision's Establishment Clause reasoning. It ultimately concludes that the current treatment of nondiscrimination accommodations is unsatisfying as a matter of both precedent and principle. Part III proposes a new framework, arguing that case law typically read to stand for a sharp limit on third-party harm makes far more sense if framed as setting out a structural limit on government's ability to allow religious actors to control who receives governmental benefits. That framework more accurately captures the decisions reached in those cases and more closely hews to the purposes of the Establishment Clause. I argue that applying such a rule would invalidate most nondiscrimination accommodations for private actors but would leave religious liberty protections mostly untouched in other areas. Finally, the Conclusion attempts to justify that rule as a normative matter, suggesting that a rule occasionally forcing a party to refrain from religious discrimination is ultimately more likely to promote respectful discourse, foster well-functioning markets, and prevent fracturing of the polity along religious lines.

1. An Expansion in Three Forms of Religious Accommodation

   Religious accommodations from nondiscrimination laws can take three forms: (1) constitutionally required accommodations under the Free Exercise Clause; (2) "general" accommodations like RFRA, extending across a wide variety of substantive areas, applied by a court to a particular case of nondiscrimination enforcement; and (3) "targeted" statutory or administrative accommodations instituted to insulate a particular area of religious belief or practice from nondiscrimination laws that might otherwise apply. (24) The past several years have seen expansions in all of these areas, especially in the lower courts and the states, and especially (but not exclusively) with application to LGBT nondiscrimination issues. As states continue to legislate and as more courts are confronted with questions of nondiscrimination and religious liberty, they will do so in a framework shaped by these decisions. This Part discusses in depth the doctrinal moves made in all three areas and their implications, and it suggests some underlying factors that may be driving these actors to expand religious liberty protections in the nondiscrimination context.

   1. Free Exercise Clause Accommodations

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