In the wake of the recent Obergefell v. Hodges decision recognizing a national right for same-sex marriage (SSM), the question that now preoccupies us – supporters of marriage equality and opponents alike – is whether businesses that oppose SSM should be granted an exemption if their opposition is based on religious objections. What I have observed in following the debate on both marriage equality itself and State-level religious freedom restoration acts (RFRAs) is a super-abundance of heat and, often, very little light and dispassionate reflection. Given the passions aroused on both sides by the debate, this is probably to be expected. It need not turn out that way. Dare I suggest that those of us who agree with the Obergefell decision can afford some forbearance and magnanimity? We need not react with or to the visceral crudity of Huckabee or Walker or Jindal, but with civility and conciliation. Toward that end, I propose taking a page out of, e.g., the history of the draft in the late 1960s and allowing a non-military version of conscientious objection for individuals and businesses that oppose SSM.
Something about the entire SSM / State-RFRA debate had been bothering me for some time. But I was unable to put my finger on just what it was that was bothering me about the debate until – don’t ask me why -- the following thought occurred to me: if someday the draft were to be reinstated, I am sure we would allow conscientious objection just as we did in the late ‘60s … so is there not a certain anomaly in allowing people an exemption from military service, prompted by an at least alleged and ostensible threat to national security … without, for all that, allowing bakers and caterers and florists to demur from providing cakes, punch, and petunias for a same-sex wedding? I can only speak for myself, but, to me, there is something deeply and profoundly “bass-ackwards” if our moral reasoning arrives at such a conclusion. Why should taking up arms to defend one's country in a time of national emergency be, in some sense, optional – even with Pearl Harbor still in flames and the entire West Coast open and vulnerable, the Nation still allowed conscientious objection -- whereas providing flowers and church decorations for a same-sex wedding should be square-jawed-“hard-coded”-by-God mandatory, potentially on pain of criminal and / or civil penalties? Why should rifles be optional, but roses compulsory?
For a long time, I got stuck there. I believed – note the use of the past tense here! – that allowing people a religiously based exemption from providing service to same-sex weddings would set a dangerous, camel’s-nose-in-the-tent precedent that could be used to resegregate lunch counters, to resegregate housing, etc. – in short, to roll the clock back to the era before Brown v. Board of Education in 1954 – all justified by “free exercise”-clause-motivated deference to the religious beliefs of restaurant owners and landlords. But then the question occurred to me: why has such a catastrophe not happened already? Having grown up with fundamentalist Christianity, I can say with certainty that many, perhaps all, fundamentalist Christians of my acquaintance were throw-an-embolism apoplectic when the 1964 Civil Rights Act, under Title II, forbade all discrimination by race in “public accommodations”. On religious grounds, they opposed all – this was the term at the time – “race mixing”.
Suffice to say that, yes, the fundamentalists of my teen-age years did and do have a fundamental right to believe as they wish regarding race and “race mixing”. (Note my careful use of the word "believe". When subjective beliefs eventuate in objective criminal acts -- lynchings, cross-burnings, church-dynamitings, voter intimidation, etc. -- then we are in different territory.) But that is only half the story. The Nation has rights, also, and one of those rights, under Article I, Section 8, paragraph 3, is the regulation of interstate commerce by the Congress. Congress has a corresponding responsibility to ensure the smooth and seamless flow of commerce across State lines – a goal that cannot be attained if African-American businessmen and employees are required, while on business trips, to go out of their way and to drive all over Hell’s-half-acre searching for a place to stay or a place to eat or a place to buy gas for their car. Fundamentalists do have a fundamental right to believe as they wish, but the Nation-as-a-whole has a supervenient “compelling interest” in the free flow of commerce. Because the latter affects the entire Nation – fundamentalists included, but also everyone else – the latter takes precedence over the former. So whatever State RFRAs were to be enacted – assuming they are constitutional in all other respects – there need be no fear that 21st-century civil rights activists would have to stage lunch-counter sit-ins, get maple syrup and hot coffee poured on them, etc., as they did back in the early ‘60s. Title II of the 1964 Civil Rights Act would still stand – because the justifying principles and rationale would remain untouched and in effect. In that sense and to that extent, nothing would change.
This brings me to my one serious reservation ... well ... OK ... maybe two serious reservations ... about allowing a non-military version of conscientious objection as the basis of State RFRAs. In a kind of rough-and-ready sense, the justification for Title II of the Civil Rights Act of 1964 is that, religious objections to “race mixing” notwithstanding, allowing public accommodations to self-segregate by race would inhibit interstate commerce by “Balkanizing” the economy into a fragmented collection of zones or areas: black folks are served here but not there, whites and blacks are served there but not here, etc., etc., etc. (Add in other racial / ethnic groups and the various permutations become prohibitively complex very quickly.) The Nation’s economy would end up looking like the Holy Roman Empire in the 1500s, except much more so. (Why not just cite the “equal protection” clause of the 14th Amendment and … badda-bing-badda-bang! … be done with it? Congress tried that with the Civil Rights act of 1875, but the Supreme Court struck it down in 1883, arguing – with considerable justification, given the repeated “No State shall … “ locution of Section 1 – that the “equal protection” clause was only applicable at the State level. Hence the recourse to the “commerce” clause of Article I, Section 8, paragraph 3, which is indisputably Nation-wide in scope.) Note that I phrase the following as a question, not a statement, because I do not know the answer: would allowing businesses and business owners to essentially self-segregate according to religious convictions result in the “Balkanization” of the Nation’s economy, not according to race, which would still be forbidden by Title II, but by sexual orientation … and whatever other criteria might turn out to be the subject of religious proscriptions? Remember: we are talking about more than just sexual orientation.
And therein ... maybe ... perhaps -- remember, I'm "blue-skying" here -- lies a potential solution: tailoring State RFRA laws so as to provide "conscientious objection" in serving sexual orientation minorities, no less -- but no more. But this brings up serious reservation number two, at which point things get very complicated very quickly. Have sexual-orientation minorities been held to constitute a "discrete and insular minority" within the meaning of the fabled Footnote 4 of Carolene Products? (I do not know for slam-dunk certain, but I seriously doubt that sexual-orientation minorities constitute such a minority within any interpretation of the meaning of that Footnote. For example, members of that group are not identifiable by any obvious characteristics and, given recent events, one could hardly argue that sexual-orientation minorities are without political power, whatever may have been the case in the past.) And if so, would the associated State-level RFRA laws be subject to strict scrutiny as to constitutionality in court tests? And if so, could State RFRA laws be tailored so as to survive such rigorous examination? Most laws subject to strict-scrutiny levels of judicial review do not. So if the consequences to the economy of State RFRA laws turned out to be nil or negligible, would such laws stand the test of constitutionality? I don't know. I'm asking.
What I am after with all the foregoing is to resurrect the old-fashioned -- as in late-1780s -- phrase "liberty of conscience". Early drafts of (what eventually became) the First Amendment promised "liberty of conscience" to all Americans: no one would be compelled against their will to violate the moral principles at the core of their very souls. Yes, of course, there would be the usual "compelling interest" / "least restrictive means" limitations (as in, e.g., United States v. Lee). But the goal of such considerations was always to minimize the extent to which the state could intrude into the Holy of Holies of the individual citizen's spirit by interposing a great Curtain of legal protection between the power of the state and one's conscience. The whole point is to avoid a repeat of Employment Division v. Smith -- which was what started the entire RFRA tumult in the first place. Building that great Curtain was the goal of military conscientious objection, and it would still be a no-less-worthy goal for florists, bakers, etc. and other business owners with reservations about SSM. There should be criteria for assessing the sincerity and permissibility of the latter just as there were for the former. But the principle would be the same in both cases. And as you can see, the air is getting very thin now.
As the Carpenters sang back in the 1970s "We've only just begun".
James R. Cowles
PS -- As I moved this post from "Draft" to the scheduler, I became aware of the cases in Portland and Denver as examples of the kind of (what I regard as) legal but invidious abuse that should not be permitted to occur in the absence of true "compelling interest" justifications -- my personal support for marriage equality notwithstanding. One could argue "scratch a conservative conscience and you will find a homophobe", but only on condition that both (a) one has comprehensive, even god-like, telepathic access to the heart and conscience of the defendant; and (b) that one is equally willing to argue "scratch a conscientious objector -- say, Gandhi or Albert Schweitzer-- and you will find a coward". Even my skepticism, omnivorous as it is, does not reach to either (a) or (b).