In the recent controversy over broadened religious exemptions in laws passed by Indiana and Arkansas, we’ve heard a lot about weddings between same-sex couples — the cake not baked, the flowers not provided. But judging from the vast scope of religious exemption claims that have already been made across the country, this does not begin and end with weddings, or with LGBT people. Such laws have potentially sweeping implications for medical care, housing and employment discrimination, and for any group that could find itself on the wrong side of a religious belief.
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Attempts to seek religious exemptions from civil rights laws aren’t new. In the Jim Crow era, segregationists cited their religious beliefs to try to get out of following civil rights laws at, to name one famous example, their restaurants. A unanimous U.S. Supreme Court told Maurice Bessinger, the unrepentantly pro-slavery South Carolina barbecue owner, in 1968 that he couldn’t use religion to defy desegregation. Decades later, he told a newspaper that he had no regrets. “It is really a constitutional right — whether a man has the right to run his business without governmental interference,” Bessinger, now deceased, said.
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Back then, there were no religious freedom laws that exempted people from generally applicable laws. Of course, just making a claim that your religion mandates an exception doesn’t mean it gets accepted — the government’s compelling interest has to be balanced against the religious claim. A man could in theory claim that he had a religious reason for beating his wife, but the government would respond that it has a compelling interest in keeping its citizens safe.
But that doesn’t mean religious liberty claims haven’t already found themselves in direct conflict with other people’s rights, and such conflicts are likely to proliferate under ever-broader exemption laws. “We know that there are some people who have religious beliefs that will harm women,” said Gretchen Borchelt, vice president for health and reproductive rights at the National Women’s Law Center.
Can a landlord deny an apartment to a single mother because of religious disapproval of non-marital sex? Can an employer cite his or her religious belief for firing an employee for getting pregnant or for the employee using in-vitro fertilization? Or for denying that employee benefits?
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In Indiana, medical providers and institutions are already allowed to cite their religious beliefs in opting out of providing abortion services, but there is no explicit law that says they can refuse to fill a prescription for birth control. The Religious Freedom Restoration Act could theoretically provide a defense for such a refusal.
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Given the language in Indiana’s law extending protections to transactions between private individuals, the same could apply broadly to medical information for contested procedures. “You could imagine a lawsuit of malpractice or licensing action, where someone might say, it would burden my religion to have provided this information,” said Louise Melling, deputy legal director at the American Civil Liberties Union.
“There are a lot of implications that haven’t been thought through, including implications for contraceptive care and other refusal of service,” said Elizabeth Nash, senior state issues associate at the Guttmacher Institute.
Melling pointed to a California case where a doctor had refused to provide in-vitro fertilization treatment to a woman because the doctor disapproved of the woman’s sexual orientation.
“We see instances in which religiously affiliated schools fire women because they are pregnant and unmarried, or because they have used assisted reproductive technology,” Melling said. The women in these cases generally argue that they are being discriminated against on the basis of gender, while the schools say they have a right to demand their employees comply with religious teachings on sexual behavior.
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On the national stage, religious exemptions have been a flashpoint when it comes to groups applying for federal grants — which services they have to provide, and whether they have to abide by federal anti-discrimination guidelines in hiring. The Catholic Church said in 2011 that it believed the federal government was discriminating against the Church in providing grants to refugees and victims of human trafficking, because the government’s conditions include referring for the full range of healthcare services like contraception and abortion.
“It’s impossible to know what this law will open up,” said Borchelt.
Irin Carmon