Religious Freedom, Equal Protection, and the Ethos of Jesus
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RELIGIOUS FREEDOM, EQUAL PROTECTION, AND THE ETHOS OF JESUS: CIRCLE, COLLISION, OR CO-EXISTENCE ©Wendell Griffen, 20151 Baptist Joint Committee Lecture Series Fuller Theological Seminary (Travis Auditorium) Pasadena, California Thursday, November 12, 2015, 10 AM Dr. Mark Labberton (President and Professor of Preaching), Dr. Joel Green (Dean of the School of Theology), Dr. Brent Walker (Executive Director, Baptist Joint Committee for Religious Liberty), sisters and brothers: Thank you for inviting me to deliver the first in what I hope will become a long and transformative series of lectures about religious liberty under the auspices of Fuller Theological Seminary and the Baptist Joint Committee for Religious Liberty. When I was first approached about this opportunity my initial reaction was shock, followed by an almost overwhelming urge to cringe. My primary professional education is in the areas of law and public policy. Most of my theological formation occurred outside seminary and divinity school venues. So, I was more than a little surprised when Brent Walker and Charles Watson of the Baptist Joint Committee asked me to consider 1 Circuit Judge, Sixth Judicial District of Arkansas (Fifth Division), Pastor, New Millennium Church, Little Rock, Arkansas. I acknowledge, with profound gratitude, the editorial assistance of Camille Drackette and Meghan Kelleybrew, who are members of my court staff. The statements contained in this lecture, and any comments offered by the author in response to questions or during discussions associated with this lecture, reflect the views of the author alone. In no way do they reflect, or should they be ascribed to the views of any other person or entity, including but not limited to, members of the judiciary (whether in Arkansas or elsewhere), as well as religious bodies, (including New Millennium Church and any other entity with which the author is affiliated). The Scripture quotations and citations contained herein are from the New Revised Standard Version Bible, copyright © 1989 by the Division of Christian Education of the National Council of the Churches of Christ in the U.S.A., and are used by permission. All rights reserved. 1 presenting lectures at what many informed observers consider the most prominent evangelical Christian seminary in the United States, if not the entire world. I learned that Brent and Charles were not pulling a prank. However, if they were, I will cooperate. My remarks today are titled, Religious Liberty, Equal Protection, and the Ethos of Jesus: Circle, Collision, or Co-Existence. The title is inspired by several events. Increase in Non-Discrimination Laws In recent years, a growing number of cities and counties across the United States have adopted non-discrimination laws that cover conduct considered immoral by some persons, including reproductive freedom, sexual orientation, and gender identity, even if there is no comparable statewide law to that effect. According to one source, “[a]t least 185 cities and counties prohibit discrimination on the basis of gender identity for public and private employees,” and that “at least 20 cities and counties prohibit such discrimination in public employment only.”2 According to the National Conference of State Legislatures, “five states—Alabama, Georgia, Mississippi, North Carolina, and Texas—do not have an accommodation law for nondisabled individuals. All states with public accommodations laws prohibit discrimination on the grounds of race, gender, ancestry, and religion. In addition, 18 prohibit discrimination based on gender identity. Nineteen jurisdictions also prohibit age-based discrimination in areas of public accommodation.”3 Litigants have brought suit based on such non-discrimination laws concerning public accommodations, employment, and housing in various jurisdictions. To the consternation of some persons, courts have 2 https://en.wikipedia.org/wiki/List_of_cities_and_counties_in_the_United_States_offering_an_LGBT_non- discrimination_ordinance. 3 See, State Public Accommodation Laws, http://www.ncsl.org/research/civil-and-criminal-justice/state-public- accommodation-laws.aspx. 2 ruled in favor of parties who complained they were subjected to unlawful discrimination in public accommodations, employment, and housing based on the professed religious beliefs of defending parties, and despite claims by defending parties that their allegedly discriminatory conduct was motivated by sincerely held religious beliefs. For instance, federal courts rejected the employment discrimination claim of a New Jersey nurse who alleged she was subjected to religious discrimination when she was fired from her job at a public hospital for refusing to participate in two emergency procedures, on religious grounds, that would have required termination of pregnancies.4 Earlier this year, the Colorado Court of Appeals upheld a decision by the Colorado Civil Rights Commission that a cake shop unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.5 In 2013, the New Mexico Supreme Court held that a commercial photography business violated the state human rights act by refusing to photograph a same-sex commitment ceremony, and that the state religious freedom restoration statute did not protect the photographer from liability under the non-discrimination statute.6 More states and localities have enacted non-discrimination measures covering employment, public accommodations, and housing. More litigants have prevailed in discrimination lawsuits based on the non-discrimination statutes. Burwell v. Hobby Lobby On June 30, 2014, the Supreme Court of the United States issued, by a 5-4 vote margin, its decision in the case of Burwell v. Hobby Lobby,7 in which the Court, for the first time in its history, held that a 4 Sheldon v. University of Medicine & Dentistry, 223 F.3d 220 (3d Cir. 2001). 5 Craig & Mullins v. Masterpiece Cakeshop, Inc., et al., Colorado Court of Appeals, 2015 COA 115 (August 13, 2015). 6 Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014). 7 Burwell v. Hobby Lobby, 573 U.S. __, 134 S. Ct. 2751, WL 2921709 (2014). 3 closely held for-profit corporation has the right to claim religious belief in order to be covered by the federal Religious Freedom Restoration Act (RFRA).8 The issue in Burwell was whether the contraceptive mandate adopted by the U.S. Department of Health and Human Services under the Affordable Care Act violated RFRA. The Supreme Court held that the contraceptive mandate, although adopted to further the compelling governmental interest of guaranteeing cost-free access to contraceptive care, burdened the exercise of religion because it was not the least restrictive way to ensure access to contraceptive care. Burwell v. Hobby Lobby was the first time the U.S. Supreme Court has held that a for- profit business could assert a claim to religious liberty based on RFRA. This marked a major shift in RFRA jurisprudence. The Religious Freedom Restoration Act was enacted in 1993 by Congress after the Supreme Court ruled in Employment Division v. Smith, that state unemployment benefits could be denied to two members of the Native American Church who were fired because they used peyote as part of their religious ceremonies in the face of an Oregon statute that made intentional possession of peyote a crime.9 The statute did not include an affirmative defense for religious use. The unemployment benefits claims were denied because the firings were deemed “misconduct.” After the denials were overturned on appeals to the Oregon Court of Appeals and Oregon Supreme Court on First Amendment grounds,10 the U.S. Supreme Court vacated and remanded the case to the Oregon Supreme Court to determine if sacramental use of illegal drugs violated Oregon’s drug laws.11 On remand, the Oregon Supreme Court held that Oregon law prohibited consumption of illegal drugs for religious purposes, but that the prohibition violated the free exercise of religion clause of the First Amendment.12 8 42 U.S.C. § 2000bb et seq. 9 494 U.S. 872, 110 S. Ct. 1595 (1990). 10 75 Or. App. 764, 709 P.2d 246 (1985); affirmed without remand, 301 Ore. 209, 721 P.2d 445 (1986). 11 485 U.S. 660 (1998). 12 307 Ore. 68, 763 P.2d 146 (1988). 4 The state then took a second appeal to the U.S. Supreme Court which upheld, by a 6-3 margin, the denial of the unemployment benefits by reasoning that because the Oregon drug laws were “neutral laws of general applicability,” which did not target the Native Americans’ religious practices, application of those laws to Native Americans did not offend the First Amendment. Justice Scalia’s majority opinion emphasized that Oregon’s ban on peyote possession applied to anyone who might possess peyote for whatever reason, and that the First Amendment does not allow a person to use a religious motive as justification for disobeying such neutral laws of general applicability, citing an 1878 Supreme Court ruling which stated that “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”13 Thus, Justice Scalia wrote, that generally applicable laws do not have to meet the strict scrutiny standard of review, which requires that governmental action that infringes on First Amendment liberties further a “compelling governmental interest” and be “the least restrictive” means for doing so. Under RFRA, when a neutral law of general applicability imposes a substantial