The limits of the courts in the clash between gay rights and religious belief

The Fifth Circuit Court of Appeals often produces extravagantly right-wing distortions of the law. But that court has recently, and surprisingly, devised a helpful approach to the conflict between gay rights and religious liberty.

America has for years been bitterly divided about that issue — most prominently, whether religious people who conscientiously object to facilitating same-sex weddings, and who therefore decline to provide cakes, photography or other services, should be exempted from anti-discrimination laws.

It ought to be possible to negotiate a deal in which both sides are able to live out their ideals. There’s nothing remarkable about special treatment for religion. Since colonial times, Quakers were exempted from the military draft. The Catholic Church was allowed to use communion wine during Prohibition, and is still allowed to discriminate against women when it ordains priests. Jewish and Muslim prisoners get kosher or halal food. The perennial question is whether religious minorities can be exempted without defeating the purposes of the laws in question.

Anti-discrimination law aims to give everyone access to goods and services, and to prevent the stressful anticipation of refusals of service. In my book, “Gay Rights vs. Religious Liberty? The Unnecessary Conflict,” I proposed that “businesses should be permitted to refuse to facilitate same-sex weddings if they publicly make their objections clear.” Few businesses would exercise that option, which would keep gay customers away without making them worry about public humiliation every time they walk into a store.

In his smart new book “Religious Liberty in a Polarized Age,” Thomas C. Berg, a professor at the University of St. Thomas School of Law, responds, accurately, that “so far no legislature has shown interest” in my idea, and LGBTQ rights groups probably “think the notices themselves would stigmatize.”

Instead, he proposes that courts should protect “small businesses that provide personal services directly to facilitate a wedding or marriage, where other providers are readily available.” He and several other scholars have proposed a “safe harbor” for businesses of five employees or less.

Berg understands, however, that “decisions applying a general religious-freedom standard could not set an exact numerical ceiling.” That’s why legislatures have a comparative advantage here.

But legislatures today have no interest in doing that. Red states won’t protect LGBTQ people from discrimination and blue states have become increasingly hostile to religious accommodation. Berg optimistically writes that “the Supreme Court has stepped into the void and protected both sides.” The protection it offers is, however, crude and overbroad. Since Amy Coney Barrett became a justice, the court has come perilously close to making the religious a kind of religious aristocracy who get whatever they want regardless of whom it hurts.

A recent court decision points toward a better path. It addressed the question of religious exemptions from Title VII of the Civil Rights Act of 1964 — a statute which, like all of federal law, is subject to the Religious Freedom Restoration Act (RFRA), which grants exemptions from federal law when doing so does not jeopardize a compelling government interest. A business claimed a religious right to discriminate on the basis of LGBT status — discrimination normally impermissible under the act.

The Fifth Circuit Court of Appeals observed in Braidwood Management v. EEOC that, according to the Supreme Court, courts in RFRA cases must “scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” Because there are plenty of other employers, the Equal Employment Opportunity Commission “does not show a compelling interest in denying [the religious claimant], individually, an exemption.” A business run by conservative Christians was therefore entitled to discriminate against LGBTQ people whenever it wanted to.

This logic has startling implications for any law that aims to prevent cumulative harms. Once an exemption is granted, the cost of claiming it is low and so sincerity is almost impossible to determine. There is a danger of opening the floodgates to so many claims that the underlying law is defeated. (Imagine if this reasoning had been applied to racial discrimination after the 1964 Civil Rights Act was passed.) Courts have generally responded to this by being skeptical of exemption claims that have nonreligious value, such as claims to be free from the obligation to pay taxes.

But the court also wrote in a footnote:

An example of a less restrictive means of furthering the government’s interest … could involve the EEOC’s propagating guidance that provides a framework for employers … that oppose homosexual or transgender behavior on religious grounds, to obtain an exemption. The lack of any guidance or method of gaining an exemption gives rise to the inference that the EEOC “has no intention in granting an exception” regardless of an employer’s religious exercise claim.

This could be read as offering government a lifeline: administrative regulations, if only the agency would produce them, can provide the bright lines that deductive legal reasoning cannot supply. It could say who qualifies for an exemption and, more importantly, who doesn’t.

Courts have ways to force legislatures and agencies to draw such lines. Most obviously, statutes can be invalidated for vagueness or overbreadth. The footnote may be read as a similar nudge — here, not striking the law down, but interpreting it in an irritating way. (Or, perhaps, as a suggestion that the Supreme Court moderate its enthusiasm for religion by pursuing this strategy.)

Legislatures that want to prohibit discrimination, some of which have no interest in allowing any religious accommodations, would be on notice that they had better create some rules that they can live with. That might be my proposal, Berg’s, or something else. (The Fifth Circuit’s footnote invites similar line-drawing by the EEOC.) Otherwise they would not like the very broad ones that courts would force upon them.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him @AndrewKoppelman.