Supreme Court’s Hijab Ruling Could Impact Gays Under RFRA

Does “Favored Treatment” For Religious Views Include Anti-Gay Beliefs? 

WASHINGTON, D.C.  (June 1, 2015)  – Today’s Supreme Court decision holding that Abercrombie illegally discriminated against a woman because she wore a hijab could impact cases where businesses are accused of illegally discriminating against gays, but base their policy upon religious beliefs protected by the Religious Freedom Restoration Act [RFRA], suggests public interest law professor John Banzhaf.

In its ruling the Court enunciated a very broad scope of protection for religious rights, suggesting that they must be given “favored treatment.” More specifically, it said in an 8-1 ruling that: “Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.”

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But if business practices which are challenged because they allegedly discriminate against gays must be given favored treatment under state RFRA acts, that extra measure of protection may appear inconsistent with apparently contrary rulings: e.g., that bakers cannot refuse, on religious grounds, to provide special groom-and-groom or bride-and-bride figurine cakes for same-sex weddings.

Supreme Court’s Hijab Ruling: Anti-discrimination laws

In such cases it appears that the policy underlying anti-discrimination laws was given preference over the policies of protecting religious beliefs embodied in RFRA laws.

But, by such reasoning, Muslim wedding caterers might be required to provide alcoholic beverages for weddings which require it, or even where the parties simply request it, and Jewish bakers might even have to bake cakes in the shape of a Nazi swastika for weddings between male and a female white supremacists or members of the KKK.

But there is a simple way to protect both important interests – an individual’s right not to be discriminated against because of sexual orientation (in states which include that criteria in anti-discrimination statutes) and a business owner’s right not to be forced to violate the commands of his religion (in states with an RFRA law) – says public interest law professor John Banzhaf.

Prof. Banzhaf  has won over 100 legal actions fighting illegal discrimination against women, Blacks, Jews, the deaf, and others.  He points to a pair of recent legal decisions which illustrate this principle in action.

His novel solution to this apparent conflict is to simply follow the clear language of the anti-discrimination law, and punish denials of services when they are based upon the status of the requester (e.g., gay, Black, female), but not when the denial is based solely upon the message – the speech – which the merchant would be required to send.

Banzhaf notes that religious Christians who do not wish to sell wedding cakes for gay weddings – like religious Jews who do not want to bake swastika-shaped cakes for the KKK, or Muslims who do not wish to cater weddings at which alcohol will be served (even if requested by the wedding party for religious reasons) – may be able to do so legally by having a uniform business policy which applies equally to all prospective purchasers, regardless of the customer’s individual sexual orientation, religious beliefs, etc.

Discrimination based on sexual orientation

In states which have laws prohibiting discrimination against people based upon their sexual orientation, it would be illegal for a baker to refuse to sell any kind of cake to a person simply because he is gay, regardless of the type of cake or the message it may convey.

But, refusing to sell a wedding cake with a same-sex statue or inscription on top to anyone at all, regardless of their sexual orientation, would not violate such a prohibition since nobody is being discriminated against because of his or her own sexual orientation.

So, for example,  if a baker would refuse to prepare and sell such a cake to a gay person, but would do the same if the request for the same cake came from a best man who is straight, or from the heterosexual mother of one of the celebrants, the letter of the law wouldn’t be broken because the refusal is not based upon a protected characteristic, but rather upon the message being sent – the speech the baker is forced to utter – which some suggest may also be protected by his Free Speech rights under the Constitution.

Similarly, a Jewish bakery might have a policy against baking a cake in the shape of a swastika, whether it is ordered by a German Nazi sympathizer, a racist fraternity, a Jewish student seeking to “take back” the hated symbol (similar to a recent situation at GWU), a stupid friend who wants it as a joke, etc.

In each case, there is no discrimination based upon a protected criteria because the baker is treating all prospective purchasers the same, regardless of sexual orientation, gender, religion, etc.

One advantage of limiting anti-discrimination statutes to protection against refusals to serve customers based upon the customers’ sexual orientation, but permitting businesses and others not to utter messages (including cake decoration, figurines, etc.) of which they disapprove for religious reasons means the government (either an administrator or a judge) doesn’t have to engage in a subjective balancing act regarding how compelling is the interest asserted by the government, are their other feasible approaches, etc.

It also does not unfairly elevate religious freedom above similarly strong views or desires based upon ethical or moral grounds rather than religious ones.

For example, says Professor Banzhaf, there are many bakers – including those who are Jewish, Catholic, or even atheist – who  have very strong objections to what the Nazi swastika stands for, and would refuse as a matter of conscience not to bake such a cake, regardless of who ordered it or for what purpose.

The problem with using religious freedom laws to protect people such as these bakers put into such situations is that it would protect bakers who refuse to make such cakes based upon their own religious beliefs, but not those who do it for simple moral or ethical considerations, he says.

Doing what Banzhaf recommends – permitting merchants to refuse to provide services based upon the message conveyed by their actions, but not permitting them to deny services solely based upon the characteristics of those requesting the service – would eliminate this unnecessary disparity.

Most people would probably agree that no baker should be required to prepare a cake with a symbol to which he is strongly opposed, for religious or for other ethical or moral reasons.

Nobody should be forced to bake a cake encouraging abortion (whether for religious or other reasons), supporting or opposing gun control, depicting sexual activity or witchcraft, etc. against their wishes, he argues.

This simple distinction is illustrated by two recent decisions involving bakeries.  Last year, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because the decision was based upon the sexual orientation of the customers.

However, when a Christian ordered cakes with writing which Denver’s Azucar Bakery considered derogatory towards gays, its action was upheld because the bakery would refuse to provide a cake with that language to any potential customer – gay or straight, Christian or atheist,  etc., and for any purpose.

Although the customer claimed that the refusal to provide a cake with this message was “demeaning to his beliefs,” the agency said the owner was within his rights to refuse to put a message on cakes which included “derogatory language and imagery,” provided it would do so for all customers.

These two decisions illustrate how such an approach can work in practice.  No bakery can refuse to provide services to customers just because they happen to be Christian, gay, Black, female, etc.

However, every bakery is free not to be forced to put statements onto cakes which they find offensive – whether or grounds of religion, or for reasons of ethics, morals, or simply good taste.

No civil rights official or judge has to make any decision about whether the religious motive is sincere, whether the state’s interest is sufficiently compelling, or whether religious views must be accorded “favored treatment” as the Supreme Court has just suggested.

To the question of how can the government tell whether the refusal to provide a particular service is based upon the sexual orientation of the customer, or simply the message convened by the cake, Banzhaf says it can use the same technique utilized in traditional civil rights cases: testers.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418 @profbanzhaf