The widespread publicity surrounding the bill to amend Arizona’s religious freedom law focused almost entirely on its apparent intent to allow businesses and individuals to refuse to deal with gay people. But the noise about the proposed amendment, vetoed by Arizona’s Governor, drowned out ongoing questions about the meaning of religious freedom in a society characterized by extraordinary religious pluralism.
Arizona’s existing law, like similar laws in other states, seeks to prevent the government from coming down on religious organizations whose practices violate some generally applicable state law. So, if members of a church sincerely believe that women are not acceptable clerics or that people not accepting their religious teachings should not work for them, they are free to act on those beliefs without fear of violating laws barring discrimination based in gender or religion. Similarly, if members of a religious organization sincerely believe that their god must be appeased by killing small animals or using hallucinogenic drugs, the organization and its members cannot be prosecuted for performing otherwise illegal acts during their worship services, at least without a showing of compelling government interest.
Laws such as these protect the constitutional right of all of us to “exercise” our religious beliefs, no matter how far from the mainstream, without fear of prosecution as we do so. The resulting discrimination among individuals is seen as a small price to pay for the protection of this right, especially since most people do not seek to be employed by organizations whose beliefs they do not share. Because not many religions sincerely believe worshipping their chosen deity requires them to engage in illegal acts, we are willing to tolerate a few exceptions.
The bill passed by the Arizona legislature, which proponents characterized as simply a tweak in the law, would have expanded the definition of those covered by the law from religious organizations to any individual, business or legal entity. This is not a minor change. Businesses otherwise required by public accommodation laws to serve all comers would be able to refuse someone who violated the religious beliefs of their owners. If, for example, a bus driver sincerely believed the teachings of his religion that women and men should not be on the same bus, he would not have to stop for women. If a waitress sincerely believed that inter-racial couples are an abomination to her chosen deity, she would not have to serve them. If a hotel owner sincerely believed that co-habiting adults are an affront to his deity, he would not have to allow them to register. If a high school science teacher sincerely believed that her deity created the universe 6,000 years ago, she could refuse to teach on those days when evolution is taught. And on and on.
These may all be examples of things that would never happen. But the fundamental point, overlooked in the debate over Arizona’s proposed amendment, is that extending the right to violate generally applicable laws to individuals because of their personal religious beliefs would make a fundamental change in our society, likely making it difficult to prosecute anyone for even the most blatant and overt discrimination. How, after all, do we determine the sincerely held religious beliefs of individuals, let alone businesses? If, for example, a person says that his or her religious beliefs, developed by a life time of serious reflection and talking to God, require that the races be separated from each other, how could anyone prove otherwise? It is one thing to determine whether Native Americans have, for generations, used hallucinogenic drugs in their worship services and therefore need to be free to do so in the future despite drug laws. It is quite another to deal with the claim of a single individual that she can experience God only through crack cocaine smoked in the privacy of her home or the claim of another that slitting the throats of neighborhood dogs is required to get the blood the deity he worships requires.
American society contains an uncountable number of religious beliefs, from belief that God requires the handling of poisonous snakes to the belief that women and men must be segregated in public to belief that all reliance on a higher power is nonsense. Our society works because people with various beliefs are free to exercise their beliefs, no matter how strange, in connection with their religious institutions but must obey the laws generally applicable to everyone outside those institutions. Americans are not bound together by common religious beliefs. They are bound together by their belief in individual freedom and their right to be treated equally despite having beliefs and practices not sanctioned by the majority.
The Arizona law and similar ones that are being considered around the country are not objectionable only because of their obvious anti-gay motivations. They are objectionable because they threaten to undo the entirety of the American experiment that people with dramatically different beliefs and backgrounds can form a workable society. By allowing individuals, outside of their religious organizations, to act on their religious beliefs, no matter how irrational or hateful, we run the risk of destroying in an instant the increasingly tolerant society it has taken us generations to build.
Donald E. Knebel is a partner in Barnes & Thornburg LLP, resident in the Indianapolis, Indiana office. He is a member of the firm’s Intellectual Property Law Department. Mr. Knebel serves as adjunct professor and senior advisor to the Center for Intellectual Property Research at the Indiana University Maurer School of Law. He frequently posts his observations here at Civic Blog. The views expressed do not necessarily reflect the views of Barnes & Thornburg LLP or the IU Maurer School of Law.