November 2019 Church & State Magazine | Featured

Religious freedom, Americans United contends, is a vital principle and a right that should be enjoyed by people worldwide. Religious freedom includes many things, such as the right to join in worship with fellow believers, construct and support houses of worship, read and promote religious literature and the right to spread your faith to others through voluntary channels, not to mention the right not to believe or worship at all.

But religious freedom has not been interpreted as an instrument to discriminate against others or take away their rights – yet, increasingly, that’s exactly what it is becoming.

Courts have recently issued rulings in three cases that Americans United says warp the definition of religious freedom, turning what should be a shield to protect individual freedom into a sword that lashes out at others. Whether these decisions are aberrations or the vanguard of a new judicial interpretation of religious freedom remains to be seen, but AU says all are troubling.

The cases are summarized here:

Minnesota: The 8th U.S. Circuit Court of Appeals in late August ruled 2-1 in a case called Telescope Media Group v. Lucero that the owners of a videography business can refuse to serve same-sex couples due to the owner’s religious beliefs.

The case came about because the Minnesota Human Rights Act, a state law that prohibits businesses in the state from discriminating against customers based on their race, religion, sex and/or sexual orientation, among other protected characteristics.

Carl and Angel Larsen, the fundamentalist Christian owners of a videography company called Telescope Media in St. Cloud, said the law conflicted with their religious beliefs and sued to demand an exemption from it. The Larsens said they were willing to film weddings only for opposite-sex couples. In court, they were backed by Alliance Defending Freedom (ADF), a large Religious Right legal group based in Arizona.

The 8th Circuit is regarded as the most conservative appellate court in the nation, so the ruling wasn’t all that surprising. Judge David Stras, who was appointed by President Donald Trump, wrote the opinion and basically gave ADF exactly what it wanted.

Stras argued that the Larsens’ videography business is, “in a word, speech.” And because it was speech, he said, the couple has the right to deny service to any customers if serving them would imply that the Larsens agree with those customers.

The company, Stras ruled, cannot be “coerce[d]” into “promoting ‘ideas they find objectionable.’”

Stras was not persuaded by Minnesota officials’ assertion that the state has an interest in squelching discrimination in public accommodations (usually defined as businesses that are required to be open to everyone). But the sole dissenting judge, Jane Kelly, pointed out that “caselaw has long recognized” that the First Amendment “‘do[es] not allow business owners … to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’”

Analyzing the ruling for Americans United’s “Wall of Separation” blog, Legal Fellow Patrick Grubel observed, “Kelly ably explained that this case was really about commerce, not speech. The Larsens, through their company, sell a service to the public. And the law is clear that once a person opens up their services to the public, they do not have a constitutional right to discriminate against their customers or employees. She also highlighted that the state’s interest in ensuring that no one suffers discrimination at the hands of public accommodations because of their sexual orientation was of utmost importance.”

Noted Grubel, “What happens next may have implications for the rest of the country. This decision is yet another example of how Religious Right legal groups – abetted by an increasingly receptive federal judiciary – are using notions of speech and religion to harm others, deprive them of full dignity and participation in public life and lay waste to our constitutional tradition of protecting vulnerable groups from discrimination.”

Arizona: In a decision issued mid-September, the Arizona Supreme Court ruled in favor of the owners of a calligraphy studio who claimed that their religious beliefs should give them the right to refuse to serve LGBTQ customers.

Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, challenged a Phoenix ordinance that requires businesses to serve everyone, regardless of race, gender, religion, sexual orientation or other factors. Duka and Koski hadn’t been asked to serve any LGBTQ people but argued that they might in the future. Their lawsuit was backed by ADF.

The Arizona high court, in a narrow 4-3 decision in Brush & Nib Studio, LC v. City of Phoenix, ruled in favor of the two women.

Like the Telescope ruling in Minnesota, the Arizona high court held that the act of creating wedding invitations is an expressive action. Observed the court, “writing the names of two men or two women (even when the names could refer to either a male or [a] female)” on an invitation is “pure speech,” and the majority held that government cannot compel business owners to say things with which they disagree.

But the decision was not a total win for Brush & Nib. The state court held that there are some products that Brush & Nib offers that it might have to sell to LGBTQ people such as place cards for receptions, because those do not explicitly celebrate the marriage.

Dissenting Justice W. Scott Bales argued that the majority got it wrong.

“[Our] constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs,” Bales wrote.

In a post for AU’s “Wall of Separation” blog, Legal Fellow Alexander Gouzoules argued that Arizona officials have a legitimate interest in combating discrimination that should override “religious freedom” claims.

“Anti-discrimination laws protect the rights of religious minorities too,” Gouzoules wrote. “An exemption allowing a business owner to refuse certain customers based on the doctrines of the owner’s religion could ultimately be applied against people of other faiths and belief systems. Laws that prohibit discrimination do not constrain religious freedom, they protect it. Carving out new exemptions to such laws would be a huge step backward in our nation’s long fight against invidious discrimination.”

Michigan: A Catholic organization that has a contract with the state to provide adoption services insists that it should be able to refuse to work with same-sex couples. Remarkably, a federal court seems inclined to agree.

States often work with private entities – sometimes called “child-placing agencies” (CPAs) – to provide adoption and foster-care services. Many of these organizations are religious, and lately conflict has arisen because some of these agencies, even though they are operating on behalf of the government and in some cases are even funded by taxpayers, refuse to serve LGBTQ people, citing religious objections.

Michigan lawmakers in 2015 passed a law specifically stating that religiously affiliated adoption/foster-care agencies were not required to provide any services that conflicted with their religious beliefs. The American Civil Liberties Union challenged the law, arguing that it amounted to discrimination against LGBTQ residents.

Among the ACLU’s plaintiffs were Dana and Kristy Dumont, a married same-sex couple who wanted to provide a home to a child in Michigan’s foster care system. They were turned away from two taxpayer-funded child welfare agencies in 2016 and 2017 because the agencies refused to work with members of the LGBTQ community.   

State officials at the time defended the law in court, but in 2018 Dana Nessel, a Democrat running for attorney general, vowed to stop defending the law if she were elected. Nessel won the election and changed state policy. Her office crafted a legal settlement, part of which required the state to stop allowing discrimination against LGBTQ people in adoption and foster-care programs.

At this point, a right-wing legal group called Becket Law sued on behalf of St. Vincent, a Catholic adoption agency that refused to work with LGBTQ people.

In late September, a federal court issued a preliminary injunction in favor of St. Vincent. The ruling means that the agency will be able to participate in the state program while the litigation continues.

The court noted that during her campaign, Nessel had made several comments critical of the 2015 state law that allowed CPAs to discriminate. For example, in one instance she charged that the law was motivated by a “discriminatory animus” and argued that it was supported by people who “disliked gay people more than they cared about children.”

Although the court held that these statements were examples of religious bias on Nessel’s part, the ACLU countered that they were meant to be critical of the law rather than of religious groups.

Undeterred, Nessel vowed to continue the case. She issued a tweet reading, “Now and forever I will fight to support the constitutional precepts of separation of church and state and equal protection under the law for all Michigan residents and all Americans.”

Americans United also criticized the ruling. Writing about the case on the “Wall of Separation,” Gouzoules asserted, “Nessel was right, and the settlement served a commendable purpose. CPAs receive both state and federal funds. LGBTQ Americans are entitled to equal treatment and freedom from the indignity of being directed to a separate CPA based on their sexual orientation – especially when the entities involved are funded by taxpayers.”

Gouzoules noted that in a similar case from Pennsylvania, a court reached the opposite conclusion. In Fulton v. City of Philadelphia, the 3rd U.S. Circuit Court of Appeals ruled earlier this year that an adoption agency’s religious views on marriage between same-sex couples did not entitle it to an exception from non-discrimination law.

“While litigation will continue with a preliminary injunction in place, the court’s reasoning at this stage is disturbing,” Gouzoules wrote. “The principle of religious freedom is important, but it simply does not provide religious organizations that accept taxpayer funds with a license to discriminate.”

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Americans United is active on several fronts working to stop a distorted view of religious freedom being used to foster discrimination or take away people’s rights.

In South Carolina, AU is representing Aimee Maddonna, a Catholic woman who wanted to volunteer to help children in need at Miracle Hill Ministries, a taxpayer-funded social-service provider and the largest foster-care agency operating in the state. But Miracle Hill espouses evangelical Protestantism and turned Maddonna away because of her religious beliefs. The agency later sought and received a special waiver from state and federal officials allowing it to discriminate, and these waivers are the focus of AU’s litigation. (See “Fostering Discrimination,” April 2019 Church & State.)

After the lawsuit was filed, Miracle Hill announced it was willing to work with Catholics – provided that they sign a statement of faith that reflects fundamentalist Protestant theology. Maddonna is unwilling to do that. (The group also refuses to work with Jews, non-theists and others who don’t accept its fundamentalist tenets.)

Americans United has also opposed several initiatives from the Trump administration that would allow for religion-based discrimination in employment or denials of service and health care.

Most recently, Americans United spoke out after the U.S. Department of Labor proposed a new rule allowing government contractors to use religion to discriminate against women, LGBTQ people, religious minorities and others.

“Today, we call on the American people to make it clear that America was founded on the principle of religious freedom – a tradition and ideal that remains central to who we are as a country,” AU President and CEO Rachel Laser said in a press statement. “This means that the government cannot use our taxpayer dollars to force any of us to live by the tenets and teachings of someone else’s religion in order to get or keep a government-funded job.”

Americans United is also active in the court. Joined by its allies at the Center for Reproductive Rights and the National Women’s Law Center, AU filed two lawsuits in California and Maryland earlier this year challenging a U.S. Department of Health and Human Services rule that would allow health care providers to deny services to people if the provider raised a religious objection. (See “Bad Medicine,” July-August 2019 Church & State.)

The litigation is ongoing. It joins a host of other Americans United efforts to stop a distorted definition of religious freedom from being used to discriminate against others. In AU’s view, that precious principle must never be weaponized to deny equal treatment to those because of their beliefs or lifestyles.