JURIST Guest Columnist Jeremiah A. Ho of the University of Massachusetts School of Law, discusses the amended Indiana “religious freedom” bills and marriage equality issues in the US…

Despite a gaining momentum for extending marriage rights to same-sex couples nationwide, tension still exists in the evolutionary struggle for LGBTQ anti-discrimination across the country. It may well be too optimistic to believe that the movement’s remaining goals would be obtained much more easily once we have met a critical escalation favoring marriage equality—from US v. Windsor to most of the ensuring marriage cases. As the recent events in Indiana and Arkansas have shown, we, at the national level, are still in a ruminating period over the equal rights of sexual minorities. And even after a potentially favorable result for marriage equality from this US Supreme Court’s term, we will still be grappling with opposition at some degree.

In the recent events in Indiana, proponents of Indiana’s Religious Freedom Restoration Act (RFRA) argued that it needed passage because an individual’s right to exercise religious beliefs was being curtailed by constitutional guarantees of equality and non-discrimination. These RFRA proponents would advocate that the right to exercise religious beliefs that also encompass views against homosexuality is being curtailed in some way because the behavior that demonstrates such religious views could also amount to acts of discrimination. In this way, proponents of such laws would say that their rights to religious freedom are not protected as strongly and in some ways are even being eroded by the progress in sexual minority rights.

Although laws such as the federal and state RFRAs exist with the intent to protect religious freedom, the Indiana RFRA was specifically criticized by opponents for several ways in which it differed from the other RFRAs at the state and federal levels. As it was originally passed, Indiana’s law explicitly permitted the use of religion as a potential basis for discriminating against people of certain groups. First, Indiana’s law specifically recognized that a for-profit business has the right to free exercise of religion in the same way that individuals and religious organizations do. And in addition, the Indiana law allowed a for-profit business to assert this right as a defense if someone claims discrimination in a private lawsuit. Opponents argued that these features in the law would essentially allow discrimination against sexual minorities from accessing services and goods under the guise of religious belief.

The religious freedom argument is a meaningful one. What happened in Indiana cannot be seen as an isolated event, but must be placed within the context of the LGBTQ movement and the successes post-Windsor and post Burwell v. Hobby Lobby. Whether the concern for religious freedom is genuine enough to prompt reactionary laws that wholeheartedly would condone discriminatory practices or whether religious freedom was rather hijacked as a way to defend discrimination, the observation remains that the subordination of LGBTQ rights is antithetical to equality principles.

The federal RFRA, signed into law by former President Clinton in 1993, had its impetus in a 1990 US Supreme Court case (Employment Division v. Smith) that changed the understanding of what kind of governmental interest that the government needed to show in a lawsuit where someone would challenge a law that substantially burdened the exercise of religion under the First Amendment. In Employment Division, the Supreme Court ruled that the government did not need to show a compelling governmental interest to justify why the law could burden free exercise of rights if the burden was just an incidental effect of applying a generally applicable law not directed specifically toward religious practices. This ruling would have the effect of lowering the previous standard in violations of First Amendment religious freedom. As a reaction to the ruling, Congress enacted the federal RFRA to restore the compelling government interest standard even if religion is substantially burdened by a neutral, generally applicable law. The states began to enact their own RFRAs after 1997 when the Supreme Court ruled in City of Boerne v. Flores that Congress overstepped its bounds when it had originally imposed the federal RFRA on the states. Some states subsequently enacted their own RFRAs to preserve the requirement of compelling governmental interest.

On the whole, the directed use of religious liberty against equality for sexual minorities is what I see as the next challenge facing the LGBT movement after marriage equality. If marriage equality reaches an eventual success in the law, the movement’s next phase will be to leverage for broader anti-discrimination protections for sexual minorities that are on-par with the high-level protections afforded other traits under the Constitution. Whether that will be accomplished through enacting federal anti-discrimination legislation specifically protecting sexual orientation or amending current federal anti-discrimination remains to be seen.

Presently in order for the law to give such high protections to sexual orientation and gender identity, the clearest path to accomplish this goal is through the marriage equality cases—that is if courts that are willing to side with same-sex couples also find that sexual orientation is worthy of heightened constitutional protection. In doing so, these marriage cases need to render sexual orientation as a trait that is immutable. But only of a few cases from the majority of pro-marriage equality cases post-Windsor have also given sexual orientation this heightened protection. Most of the pro-marriage equality cases post-Windsor have left this issue untouched.

When these cases have given sexual orientation heightened protection, they have claimed that sexual orientation is an immutable trait by redefining immutability from something that is rooted in biology to a broader definition that encompasses both biological and constructivist views. These courts have considered sexual orientation as something immutable because sexual identity is so fundamental to a person’s identity that the law ought not to force someone to change it. In other words, whether one’s sexual identity has been both biologically affixed and/or informed by a person’s choice, these courts recognize that sexual identity is so basic to a person’s humanity and dignity that the law should not interfere with it.

What this means is that to protect sexual orientation on the highest level from discrimination, the law must preserve individual autonomy for people to be who they are and not condone discriminatory acts that would diminish this autonomy. For instance, a law that banned the employment of homosexual individuals from governmental employment would have the effect of abridging someone’s autonomy based on a particular sexual orientation. A gay person who gets a governmental job would have to hide his or her sexual orientation out fear of being fired, which diminishes personal autonomy.

The exercise of religious liberties is another form of individual autonomy. In the history behind RFRAs and in the recent Hobby Lobby decision, we have seen high regard for religious liberties under the law. I think that once we are beyond the same-sex marriage debate, there will be a more prominent clash between the Constitution’s evolving regard for individual autonomy in the realm of sexual identity (and more broadly, identity politics) and the Constitution’s established regard for autonomy in free exercise of religion. Amongst others, there are two large ways in which this will be handled—one, in the kinds of vicious squabbling we see from incidents such as the Indiana RFRA, and secondly, in the broader constitutional debates that take place in the judiciary that allow the tension between these two autonomies to play itself out.

In essence, the movements supporting and opposing LGBTQ rights have distilled the debate into a dialogue between autonomy versus anti-discrimination—or respectively constitutional liberty and equality. Through events such as those over the Indiana RFRA, it is becoming clearer and clearer that a need exists for a federal anti-discrimination law or policy that protects sexual minorities. Although Title VII covers sex and gender discrimination, it does not specifically cover sexual orientation discrimination. Additionally, the Employment Non-Discrimination Act, which was designed to protect sexual minorities against employment discrimination based on orientation, has not been enacted, despite Senate passage. The victories in marriage equality cases have succeeded in extending the fundamental right to marry to same-sex couples in ways that are equally distributed to opposite-sex couples. Yet very few of these recent federal cases have been clear that in addition to having this fundamental right, sexual minorities should also be protected from discrimination at the highest levels under the Constitution. Having the right to marry someone of the same sex and having the highest protections against discrimination based on sexual orientation are two different legal concepts that are sometimes related and sometimes not. Thus, having an anti-discrimination law that clearly protects sexual orientation and identity on the same levels that the Constitution protects traits such as race or gender would be very helpful in clarifying the issue of sexual orientation discrimination.

One of the consolidated marriage equality cases (Obergefell v. Hodges) that will be heard by the US Supreme Court this spring did address the heightened protections for sexual orientation head-on in the lower courts. It will be interesting to see whether the Supreme Court will address it when it decides the marriage equality cases in June. Certainly, in light of Indiana’s RFRA, momentum exists to resolve this issue.

Jeremiah A. Ho is an Assistant Professor of Law at the University of Massachusetts School of Law. His scholarly work focuses on the developments in sexual orientation and the law. His latest article to be published this fall from the Kentucky Law Journal (University of Kentucky School of Law) will focus on the upcoming Supreme Court challenge to marriage equality in Obergefell v. Hodges. He would like to acknowledge Megan Beyer and Felicia Carboni for research assistance in furtherance of this commentary.

Suggested citation: Jeremiah A. Ho, A Tale of Two Liberties: Indiana’s Religious Freedom Laws and Implications beyond Marriage Equality , JURIST – Forum, Apr. 22, 2015, http://jurist.org/forum/2015/04/jeramiah-ho-lgbtq-liberties.php