Effect of the Religious Liberty Protection Act on State and Local Civil Rights Laws

Effect of the Religious Liberty Protection Act of 1998 on State and Local Civil Rights Laws

I. INTRODUCTION

The Religious Liberty Protection Act of 1998 ("RLPA"), introduced as H.R. 4019 and S. 2148 in the 105th Congress, would have enhanced the protection of certain religious expression that may be burdened by purportedly neutral state or local laws. However, passage of an unamended RLPA would have undermined many state and local civil rights laws by creating a new defense against civil rights claims brought under those laws. RLPA would particularly undermine many of those state and local laws which protect groups that get the least protection from the courts and the federal government, namely, disability, sexual orientation, familial status, marital status, pregnancy status, and possibly gender and religion. 1

RLPA would provide extensive statutory protection for religious exercise to replace or enhance the constitutional protection previously afforded religious exercise prior to a 1988 Supreme Court decision that lowered the standard of review for religious exercise claims. As reported out of the House Judiciary Committee's Constitution Subcommittee, RLPA provides, in relevant part, that:

a [state or local] government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, even if the burden results from a rule of general applicability. . . . [unless the] government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

H.R. 4019, § 2(a)-2(b). H.R. 4019, as introduced, and the Senate companion bill, S. 2148, apply the same test, but also rely on Congress' Commerce Clause authority.

Although the objective of enhancing the protection of the exercise of religious belief from governmental interference is important, several recent cases raise significant concerns that defendants in civil rights cases could use RLPA as a defense to state or local civil rights claims. RLPA does not have any specific provision for reconciling such potentially serious conflicts between a defendant's claim that religious belief motivated his or her discriminatory act, and a civil rights plaintiff's claim that state or local anti-discrimination statutes provide protection against such discrimination--regardless of the defendant's motivation. Consequently, without any further amendments, RLPA could potentially jeopardize certain civil rights claims in at least some states, and will increase the litigation costs for civil rights plaintiffs even for those claims where a RLPA defense would be unsuccessful.

II. SCOPE OF THE POTENTIAL PROBLEM

The scope of the potential civil rights problem raised by religious freedom statutes is broad. The U.S. Court of Appeals for the Ninth Circuit and five state supreme courts have recently decided six cases with nearly identical fact patterns, namely, landlords claiming that their religious beliefs defeat housing discrimination claims brought by unmarried heterosexual persons based on marital status. The decisions were split, with the Ninth Circuit and the Massachusetts and Minnesota courts holding that a religious liberty defense could defeat civil rights claims based on state or local laws. The courts could apply the reasoning in those decisions to civil rights claims made by members of other groups that also receive less protection from the courts and the federal government.

The intent of at least some of the supporters of RLPA is clear. Several witnesses during hearings before the House and Senate Judiciary Committees specifically stated their belief that RLPA could and should be used as a defense to civil rights claims based on gender, religion, sexual orientation, and marital status.

In applying standards of review substantially similar to the RLPA religious exercise standard, numerous courts have recently decided cases in which defendants raised a religious liberty defense to civil rights claims based on state or local laws protecting against discrimination in housing based on marital status. See Thomas v. Municipality of Anchorage, 1999 U.S. App. Lexis 440 (9th Cir. Jan. 14, 1999) (governmental interest in preventing marital status discrimination was not compelling); McCready v. Hoffius, 1998 Mich. Lexis 3234 (Mich. Dec. 22, 1998) (the government's interest in providing equal access to housing was compelling and uniform application of the state anti-discrimination law was the least restrictive means); Smith v. Fair Employment & Housing Comm'n, 913 P.2d 909 (Cal. 1996) [hereinafter "FEHC"] (no substantial burden on religious exercise found); Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (remanding for further consideration of whether the governmental interest in eliminating discrimination based on marital status was compelling and whether uniform application of the state anti-discrimination law was the least restrictive means); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska), cert. denied, 115 S. Ct. 460 (1994) (the government's interest in providing equal access to housing was compelling and uniform application of the state anti-discrimination law was the least restrictive means); Cooper v. French, 460 N.W.2d 2 (Minn. 1990) ("marital status" did not include unmarried cohabiting couples; a plurality of the court also found no compelling governmental interest in preventing marital status discrimination); Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. 1997) (governmental interest in eradicating discrimination in housing against unmarried couples was compelling), vacated for lack of case or controversy, 685 N.E.2d 622 (Ill. 1997), __ N.E.2d ___. Thus, in the Ninth Circuit and Massachusetts and Minnesota, defendants may successfully use their religious beliefs to defeat at least certain civil rights claims based on state or local laws.

In those housing cases, the owner-occupied exceptions found in all state fair housing laws did not apply; the rental properties at issue were not owner-occupied, but instead were used solely for investment purposes. See Thomas, 1999 U.S. App. Lexis 440 (statute provides exception for "space rented in the home of the landlord"); McCready, 1998 Mich. Lexis 3234 at n.15; Desilets, 636 N.E.2d at 238 n.8 (law applicable only to "dwellings that are rented to three or more families living independently of each other"); Swanner, 874 P.2d at __ (statute provides exception for individual home "wherein the renter or lessee would share common living areas with the owner"); French, 460 N.W.2d 2 (owner did not live in subject property, a two-bedroom house);

FEHC, 913 P.2d at 912 (Smith "does not reside in any of the four units"); Jasniowski, 678 N.E.2d at 745 (renting a "building comprised of both commercial space and a residential apartment"). The landlords all claimed that their sincerely held religious beliefs about premarital sexual relations required them to deny housing to unmarried couples, despite state or local laws prohibiting discrimination on the basis of marital status in housing. Although the religious liberty defense was not always successful, the courts were split on whether the anti-discrimination laws impose a substantial burden on the exercise of the landlord's religion, and on whether the governmental interest in eradicating marital status discrimination in housing is compelling and pursued by the least restrictive means.

Defendants in civil rights cases have also raised religious liberty defenses in cases involving such characteristics as race or sexual orientation and in contexts ranging from educational institutions to employment. For example, defendants or courts unsuccessfully raised religious rationales for racially discriminatory practices. E.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (religious university claimed that its religious beliefs about miscegenation justified racial discrimination in admissions); see also Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a Virginia antimiscegenation statute). 2

Prior to the Supreme Court lowering the standard of review for religious liberty claims in Employment Division of Oregon v. Smith, 485 U.S. 660 (1988), the use of religious liberty defenses to civil rights claims was widespread. See, e.g., Bob Jones Univ., 461 U.S. 574, 604; EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272 (9th Cir. 1982) (religious publishing house claimed that dismissing employee in retaliation for bringing discrimination charges was based on religious doctrine forbidding members of the church from bringing lawsuits against the church); Walker v. First Orthodox Presbyterian Church, 22 FEP Cases (BNA) 762 (Cal. Sup. Ct. 1980) (church dismissed gay organist because church doctrine forbids "unrepentant sinners" from taking a leadership role in musical services, despite city ordinance forbidding sexual orientation discrimination in employment); Minnesota ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985) (health club's owners insisted on hiring only employees whose religious beliefs were consistent with the owners' religious beliefs despite state anti-discrimination law forbidding employment discrimination based on religion, sex, and marital status); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. App. 1987) (religious university argued that its religious beliefs justified the denial of "University Recognition" to gay student group despite a District of Columbia civil rights law prohibiting discrimination on the basis of sexual orientation).

In addition, during recent Congressional hearings, advocates for religious groups testified that RLPA could be used as a defense to allow a sectarian vocational-tech school receiving federal funds to offer single-sex education, despite federal laws prohibiting sex discrimination in education; to permit a religiously-affiliated day care center to discriminate on the basis of religion in hiring instructors; to permit employers with sincerely held religious beliefs to discriminate against gay men and lesbians in hiring employees, despite state or local laws prohibiting discrimination on the basis of sexual orientation; and to allow landlords with religious objections to refuse to rent to unmarried couples, despite state or local fair housing laws protecting against discrimination based on marital status. State and local laws also provide protection based on other characteristics that receive less than strict scrutiny, such as disability, familial status, or pregnancy.

Although the governmental interest in eradicating discrimination has usually been found compelling, providing a new defense in civil rights actions will--at minimum--increase the cost of litigation for plaintiffs. However, the risk for persons claiming civil rights protection based on characteristics that receive lower levels of scrutiny is substantial. Because many of the groups claiming protection under state and local civil rights laws do not currently receive heightened scrutiny for their claims in court, and receive little or no explicit federal statutory protection from Congress, it is likely that at least some courts would find that the governmental interest in ending discrimination against these groups is not compelling. As noted above, the courts are divided on the question, and these decisions have come from states which traditionally have been vigorous and strict in enforcing their civil rights laws.

III. APPLICATION OF THE FOUR-PART RLPA TEST TO CIVIL RIGHTS CLAIMS

As reported out of the Constitution Subcommittee during the 105th Congress, RLPA provides, in relevant part, that:

a [state or local] government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, even if the burden results from a rule of general applicability. . . . [unless the] government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

H.R. 4019, § 2(a)-2(b). Thus, in deciding a challenge to a civil rights claim based on a state or local anti-discrimination law, a court must apply a four-part test: (i) is the defendant's discrimination "religious exercise"?; (ii) does the applicable state or local anti-discrimination law "substantially burden" the defendant's religious exercise?; (iii) is the government's interest in eradicating the discrimination "compelling"?; and (iv) are uniformly applied anti-discrimination laws the least restrictive means of furthering any compelling governmental interest?

A. Is Discrimination "Religious Exercise" Under RLPA?

The first part of the RLPA test is whether a refusal to comply with civil rights laws is religious exercise. Because RLPA defines religious exercise broadly as "an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief," RLPA, § 6(1), any civil rights defendants whose discriminatory actions were "substantially motivated by religious belief" will be able to meet this prong of RLPA. Under the pre-Smith Free Exercise Clause jurisprudence which RLPA purports to restore, the "Supreme Court free exercise of religion cases have accepted, either implicitly or without searching inquiry, claimants' assertions regarding what they sincerely believe to be the exercise of their religion, even when the conduct in dispute is not commonly viewed as a religious ritual." Desilets, 636 N.E.2d at 237 (citing Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 137 (1987); United States v. Lee, 455 U.S. 252, 257 (1982); Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715 (1981)).

Courts have held that refusal to rent an apartment to an unmarried heterosexual couple based on the landlord's religious belief that promoting premarital sex is sinful is religious exercise. See, e.g., FEHC, 913 P.2d at 923 ("While the renting of apartments may not constitute the exercise of religion, if Smith claims the laws regulating that activity indirectly coerce her to violate her religious beliefs, we cannot avoid testing her claim under the analysis codified in RFRA.");

Desilets, 636 N.E.2d at 237 ("Conduct motivated by sincerely held religious convictions will be recognized as the exercise of religion."). Similarly, in the employment context, courts have accepted the argument that hiring decisions are religious exercise, if the employer can demonstrate that the decision was based on religious belief or doctrine. See, e.g., Walker, 22 FEP Cases (BNA) 762 (discharging gay organist when the church viewed homosexuals as "unrepentant sinner[s]" and considered the position of organist "a member of the worship team" was "based on religious beliefs"); Pacific Press, 676 F.2d at 1280 (retaliatory action taken by religious publisher against employee who instituted EEOC proceedings alleging sex discrimination was religious exercise because church doctrine prohibited lawsuits by members against the church).

The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense. In McClure, the Minnesota Supreme Court held that a health club had standing to raise a free exercise defense, but noted that because the "corporate veil" was pierced, the three owners were held liable for any illegal actions of the corporation, and the free exercise rights being asserted were their rights rather than the rights of the health club. McClure, 370 N.W.2d at 850-51. In contrast, the Minnesota Court of Appeals found that when a corporation itself has been held liable for discrimination, it may not raise the free exercise rights of its principals. See Blanding v. Sports & Health Club, Inc., 373 N.W.2d 784, 790 (Minn. App. 1985), aff'd without op., 389 N.W.2d 205 (Minn. 1986). In Blanding, the court analyzed the representational standing issue and held that the standing requirements were not met because the "evangelical religious commitment of its principals is not germane to the Club's purpose, profit-seeking." Blanding, 373 N.W.2d at 790. B. Do State and Local Civil Rights Statutes "Substantially Burden" Religious Exercise?

The purpose of the second part of the RLPA test is to avoid frivolous litigation over neutral laws which have only a minimal impact on religious exercise. Congress has not defined "substantial burden," and there is no generally applicable test to determine whether a substantial burden exists. See FEHC, 913 P.2d at 924. However, several circuit courts have adopted a broad reading of "substantial burden," holding that:

a substantial burden on the free exercise of religion, within the meaning of the [RFRA], is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs.

Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir. 1996); see also Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) ("To exceed the 'substantial burden' threshold, governmental regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person's] individual beliefs."); Brown-El v. Harris, 26 F.3d 68, 70 (8th Cir. 1994) (substantial burden imposed when person is compelled, "by threat of sanctions, to refrain from religiously motivated conduct") (quotations omitted). But cf. Goodall v. Stafford Cty. Sch. Bd., 60 F.3d 168, 171-72 (4th Cir. 1995) (substantial burden not imposed where plaintiffs "have neither been compelled to engage in conduct proscribed by their religious beliefs, nor have they been forced to abstain from any action which their religion mandates that they take"); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995) (same); Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) (per curiam) (same).

Economic cost alone does not constitute a substantial burden. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961); FEHC at 926-27. However, even those courts that have adopted a narrow definition of substantial burden--where a substantial burden is imposed only where someone is compelled to engage in conduct forbidden by his or her religion, or forbidden to engage in conduct mandated by religious belief--have held that imposing liability on an employer for non-compliance with employment anti-discrimination laws constitutes a substantial burden when compliance would contradict religious belief or doctrine. See, e.g., Pacific Press, 676 F.2d at 1280 ("there is a substantial impact on the exercise of religious beliefs because EEOC's jurisdiction to prosecute . . . will impose liability on Press for disciplinary actions based on religious doctrine"); Walker, 22 F.E.P. Cases (BNA) 762 (municipal law imposing general and special damages on church for discharging organist because of his sexual orientation creates a substantial burden on the church's free exercise of religion).

One court has held that compliance with state fair housing laws does not impose a substantial burden, in part because "one who earns a living through the return on capital invested in rental properties can, if she does not wish to comply with an anti-discrimination law that conflicts with her religious beliefs, avoid the conflict, without threatening her livelihood, by selling her units and redeploying the capital in other investments." FEHC, 913 P.2d at 925. The court also noted that "the landlord in this case does not claim that her religious beliefs require her to rent apartments; the religious injunction is simply that she not rent to unmarried couples. No religious exercise is burdened if she follows the alternative course of placing her capital in another investment." Id. at 926.

Because the court in FEHC used an analysis for "substantial burden" that appears more stringent than the analysis required by RLPA, other courts are likely to view the "choice" of engaging in a different occupation or complying with the anti-discrimination law and violating one's religious beliefs as too harsh, and conclude that the burden is substantial. See, e.g., Desilets, 636 N.E.2d at 237-38 (substantial burden imposed because the civil rights law "affirmatively obliges the defendants to enter into a contract contrary to their religious beliefs and provides significant sanctions for its violation," and "both their nonconformity to the law and any related publicity may stigmatize the defendants in the eyes of many and thus burden the exercise of the defendants' religion"). Indeed, all courts, other than the court in FEHC, that have considered the question in the housing context have found that the state or local anti-discrimination law substantially burdened the defendant's exercise of his or her religious beliefs.

C. Is the Governmental Interest in Eradicating Discrimination Compelling?

The third part of the RLPA test provides that only a compelling governmental interest justifies imposing a substantial burden on the exercise of religion. 3 The courts that recently decided civil rights cases in which a defendant raised a religious liberty defense have split most sharply on this part of the test.

The governmental interest in eradicating certain types of discrimination, particularly racial and sex-based discrimination, clearly will meet the compelling interest standard. See Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) ("The governmental interest at stake here is compelling. . . . [T]he government has a fundamental, overriding interest in eradicating racial discrimination in education . . . . That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs."); Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (the state government's "compelling interest in eradicating discrimination against its female citizens justifies the impact . . . on the male members' associational freedoms"). Such plaintiffs, however, should anticipate incurring litigation costs as defendants raise the defense.

Because sexual orientation, marital status, disability, and other newly protected classes currently do not receive the same level of judicial scrutiny as race and sex, however, it may be more difficult to persuade all courts that the governmental interest in preventing discrimination on those grounds is compelling. For example, courts have reached divided results in determining whether preventing discrimination based on sexual orientation is compelling. Cf. Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 37 (D.C. App. 1987) (District of Columbia's interest in prohibiting educational institutions from denying equal access to tangible benefits on the basis of sexual orientation is compelling); Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. App. Div. 1998) (New Jersey's interest in eradicating discrimination in public accommodations on the basis of sexual orientation is compelling); Presbytery of New Jersey v. Florio, 902 F. Supp. 492, 521 (D.N.J. 1995), aff'd, 99 F.3d 101 (3d Cir. 1996) ("New Jersey's interest [in eliminating discrimination based on sexual orientation] is not only substantial but also can be characterized as compelling."), with Walker v., 22 F.E.P. Cases (BNA) 762 (San Francisco's interest in eradicating sexual orientation discrimination in employment is not compelling). The cases on marital status discrimination also are divided. Cf. Swanner, 874 P.2d at 282-83 (Anchorage's interest in prohibiting marital status discrimination in housing is compelling), with Desilets, 636 N.E.2d 233 (remanding for further consideration of whether the government's interest in prohibiting marital status discrimination is compelling); French, 460 N.W.2d at 10-11 (plurality op.) (no compelling governmental interest in ending discrimination against unmarried couples).

Whether prohibiting discrimination on the basis of religion will be considered a compelling governmental interest is also unclear. Several courts have found that a state's interest in prohibiting discrimination based on religion is compelling. See, e.g., Jews for Jesus, Inc. v. Jewish Comm. Relations Council, 968 F.2d 286, 295 (2d Cir. 1992) (incidental restriction on speech caused by New York's anti-discrimination law was constitutional because "New York has the constitutional authority to prohibit, and a substantial, indeed compelling, interest in prohibiting racial and religious discrimination in obtaining public accommodations"); Minnesota ex rel. McClure v. Sports & Health Club, 370 N.W.2d 844, 852-53 (Minn. 1985) (Minnesota's interest in eradicating marital status, sex and religious discrimination is compelling); Pines v. Tomson, 160 Cal. App.3d 370 (Cal. App. 2d Dist. Div 3 1984) (holding that California's compelling interest in prohibiting discrimination based on religion overrides defendants' freedom of association).

Unlike classifications such as race and gender which are protected by the Fourteenth Amendment, religion is protected, at least in part, by the Free Exercise Clause (certain religious groups may claim protection under the Thirteenth Amendment). However, the Supreme Court has determined in Smith that the Free Exercise Clause does not require that laws burdening religious exercise be subject to strict scrutiny review. Because religion receives less than strict scrutiny protection, and RLPA expands protection for religious exercise with no exemption for civil rights laws, a court could conclude that at least with respect to religion, Congress intended to provide more protection for religious exercise through RLPA than for religious discrimination through civil rights laws.

Because RLPA requires that the "government demonstrate[] that application of the burden to the person is in furtherance of a compelling governmental interest" (emphasis added), courts could require the government to prove that there is a compelling interest in requiring the specific landlord or employer to comply with the civil rights law. See, e.g., Desilets, 636 N.E.2d at 238 (the issue is "whether the record establishes that the Commonwealth has or does not have an important governmental interest that is sufficiently compelling that the granting of an exemption to people in the position of the defendants would unduly hinder that goal"); French, 460 N.W.2d at 9 ("French must be granted an exemption . . . unless the state can demonstrate compelling and overriding state interest, not only in the state's general statutory purpose, but in refusing to grant an exemption to French."). However, the majority of courts interpreting RFRA considered simply whether the government had a compelling interest in enforcing the law at issue.

When a state or municipality chooses to target and prohibit a specific form of discrimination, presumably it does so because it believes that there is a serious problem. See EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1280 (9th Cir. 1982) ("By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a 'highest priority.'"). Legislative determination alone, however, is not always dispositive of whether the state's interest is compelling. See Gay Rights Coalition, 536 A.2d at 33 ("While not lightly to be disregarded, the Council's strong feelings do not resolve the issue whether its ban on sexual orientation discrimination represents a compelling governmental interest."); Desilets, 636 N.E.2d at 240 ("we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the state has" a compelling interest in ending marital status discrimination in housing); but see Dale, 706 A.2d 270 at __ (accepting the legislature's enactment of the prohibition against discrimination as proof that the government's interest was compelling, because the inclusion of sexual orientation in the anti-discrimination statute "was an implicit recognition that discrimination based on 'archaic' and 'stereotypical notions' about homosexuals that bears no relationship to reality cannot be countenanced").

To the extent that other state or municipal l