WASHINGTON (RNS) Arizona Gov. Jan Brewer may have ended the latest controversy in her state by vetoing a “religious freedom” bill that threatened gay men and lesbians, but the nation’s legislatures and courts are just getting started.

Participants gather during a rally celebrating the Supreme Court's gay marriage ruling at Ilus W. Davis Park in Kansas City, Mo. on Wednesday (June 26, 2013).  RNS photo by Sally Morrow

Participants gather during a rally celebrating the Supreme Court’s gay marriage ruling at Ilus W. Davis Park in Kansas City, Mo. on Wednesday (June 26, 2013). RNS photo by Sally Morrow


This image is available for Web and print publication. For questions, contact Sally Morrow.

While religious liberty remains a “core value” in Arizona, Brewer said Wednesday (Feb. 26), “so is non-discrimination.” And therein lies the balancing act that’s at the root of several other disputes.

  • Can the Obama administration force for-profit businesses to provide health insurance for their employees that includes forms of contraception the owners equate with abortion? That case comes to the Supreme Court next month.
  • Can a New Mexico photographer, an Oregon bakery and a Washington state florist refuse to provide services to same-sex couples? Those questions are pending before courts and could soon go to voters as well.
  • Can several states from Mississippi in the South to Utah in the West enact laws similar to the one Brewer vetoed in Arizona, setting up potential conflicts between religious liberty and other freedoms?

The answer isn’t simple. Congress and the states often carve out exceptions for religious beliefs. The Supreme Court has consistently made room for religious exercise. And unlike race and gender, sexual orientation is not a protected class — yet.

However, for a religious liberty bill such as Arizona’s to pass the smell test, it must show a compelling interest on the part of those who want to flex their religious muscles, and it must not impose undue costs or burdens on others. That is where many such efforts collapse.

“We ought to accommodate religion when we can,” says Frederick Gedicks, an expert on law and religion at Brigham Young University Law School. “That is, when it doesn’t impose significant costs on others.”

If photographers, bakers and florists refused to serve gay men and lesbians, could they get the services easily elsewhere? Even if they could, would they be embarrassed or insulted by the slight?

A man exits the Supreme Court building carrying an American flag after the high court made its rulings on same-sex marriage Wednesday (June 26, 2013). RNS photo by Adelle M. Banks

A man exits the Supreme Court building carrying an American flag after the high court made its rulings on same-sex marriage Wednesday (June 26, 2013). RNS photo by Adelle M. Banks


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The first question is paramount in the Supreme Court challenge by for-profit businesses to the so-called “contraception mandate” in the health care law. The companies argue that female employees can get birth control easily on their own, without their employers’ assistance.

The second question was addressed by Supreme Court Justice Anthony Kennedy in last year’s opinion striking down a key section of the Defense of Marriage Act, which denied federal benefits to legally married same-sex couples. Kennedy said the purpose and effect of the law was “to impose a disadvantage, a separate status, and so a stigma” on those couples.

Beyond assessing the burden on consumers or employees, the other relevant question in most cases is: What’s the compelling interest?

In the case of Arizona’s businesses, Brewer said, there wasn’t one. The bill “does not seek to address a specific and present concern related to Arizona businesses,” she said.

It’s quite possible that the New Mexico photographer cannot avoid serving gay men and lesbians, as the state Supreme Court ruled. But the U.S. Supreme Court could permit an Oklahoma-based arts-and-crafts company and a Pennsylvania woodworker to deny some contraception coverage to their employees.

That’s because in the latter case, it’s the government compelling family-owned corporations to do something against their owners’ religious beliefs, says Anthony Caso, a law professor at Chapman University in California who has submitted a brief supporting Hobby Lobby and Conestoga Wood Specialties.

But Sally Steenland, director of the faith and progressive policy initiative at the liberal Center for American Progress, said religious beliefs can’t overcome the Constitution’s guarantee of equal protection.

“What ends up happening is that religious beliefs trump the Constitution, and people can pick and choose the laws they want to obey,” she said. “It enshrines discrimination as a religious belief.”

(Richard Wolf writes for USA Today.)

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28 Comments

  1. There is no contradiction here because the issues are similar in one regard.

    In both the religious business discrimination bills and the contraceptive mandate issues are that the term “religious freedom” is being used as a general excuse to avoid compliance with laws that the person finds inconvenient. Neither of these are actual exercises of religious beliefs.

    A for-profit corporation does not have a religion. Free exercise of religion was never a valid reason to harm the interests of others.

  2. Our nation and individuals have always had difficulties deciding what is right and what is wrong when the rights of one individual or group conflict with the rights of another individual or group. Sometimes they have decided the dilemma by a majority rules, a popular vote. HOWEVER I think our Constitution was set up particularly to protect the rights of a minority from the tyranny of a majority. I really don’t see how anyone, individual, business or corporation can honestly claim that their rights (religious or secular) trump the rights (religious or secular) of all others.

    • Deacon John M. Bresnahan

      The problem is that the major part of the Constitution was set up to protect our country’s citizens from the power of government tyranny. But government power is now being used by one group to coerce even “mom and pop” businesses to be involved in activities they find morally repugnant–or lose their livelihoods–
      What is next ?? Peta gaining government power to coerce or crush kosher butchers???? Unfortunately, many Americans have been taught to implicitly trust government to do the right thing. But our Founding Fathers and History have proven beyond a doubt that government should be kept on a short leash.

      • Deacon, have you been living in a cave for the last 150 years?

        Government always had the power to regulate how people do business in open commerce. Its in the Constitution, Article I. They have always had their hands in the till and told you how to do business. Its what they do.
        Government power to enforce equal protection under the law has been around since the end of the Civil War.

        Government has had the power to keep businesses from engaging in discriminatory actions since 1964. If what you find “repugnant” is treating a customer like a normal human being, you are SOL. You act as if the Civil Rights Act never existed. I know its kinda inconvenient when you want to use religion as an excuse to attack others, but life is full of inconveniences.

  3. No one should be force to accept someone lifestyle ….An Larry your point is invalid there are many private business with religious belief…Plus last time i check i thought owning your own business mean you can choose your own business model not have a Government tell me who i can cater to and can not just as a car dealer sells cars its not right to make them sell furniture because its not what the business owner wants to do ….. Last time i check God gave everyone a brain to make there decision freely not be force to accept government beliefs…

    • A private business has no religion. It is not a natural person. It is a form of property interest, it has a legal existence but it cannot have an actual religious belief. That is an individual right.

      A private business can no more have a religious faith than my car or condo. You can’t claim that the tickets I get for double parking in front of a church are a violation of my vehicle’s free exercise of religion.

      Actually the government can tell you how you can conduct business if you are doing so in open commerce. They can sanction you for engaging in discriminatory practices, and have had that right for over 50 years. They can tell you how you must sell something and what kind of licensing is required to do so. Maybe you should familiarize yourself with the Department of State in your home state and the Civil Rights Act. Your ignorance of both drives your argument.

      A corporation exists solely at the fiat of state laws and requires compliance with various rules and statutes to maintain such an existence. A business entity is legally separate from its owners. It does not assume the religious beliefs of its ownership any more than I require to seek a priest to sell my car (since it would be a forced conversion to its new owner’s faith)

      People are claiming corporations have religious beliefs because they are trying to dodge laws they don’t like. There is no way a company can have a religious belief without violating any notion of employee religious beliefs, labor laws or any laws applying to the regulation of commerce.

      Those government “beliefs” as you call them are called LAWS. You can chose to ignore them, but you do so at your own peril.

      • Larry: I take it you are not familiar with the Citizens United ruling that says corporations are associations of individuals and, in fact, have free speech. If a corporation as an association of individuals can have free speech, why would it not also hold true that a corporation can have religion as you put it? Fortunately, Justice Stevens’ dissent in that case that views corporations in a manner consistent with your view was in the minority. Don’t be surprised when the Citizens United decision is the cornerstone of the winning argument for private businesses to have the right to exercise their religious views.

        • Susan Humphreys

          Sadly you make a good point. I think that a government that doesn’t step in to protect businesses from themselves, AND protect individuals from business abuses is a government getting ready to collapse and a country on the verge of self-destruction. Note that is protect businesses from their own business practices not from government practices.

        • People read WAYYYY too much into Citizens United and miss a good deal of historical context in the decision.

          You can have corporate free speech without attacking liberties of employees and those outside. Corporate speech has always been recognized going back to the late 19th Century. Advertisements, marketing and corporate announcements are well known forms of corporate speech.

          Since a corporation has collective financial interests, it has political interests. This is a rational link. A for-profit company seeks to use the political sphere to the financial advantage of the corporation. Political speech is not “deeply held belief”, it is opportunism.

          Religious rights are very different from political free speech. They are acknowledged as irrational, not linked to any kind of obvious financial interest and inherently divisive and ultimately personal in nature.

          A corporation is set up with the goal of leadership with the rational role of ensuring the corporation’s financial health. Political speech furthers that.

          Corporate religion could never do that. It would antagonize anyone within the leadership or employees not of a given faith. It would antagonize the public which may have conflicting religious beliefs.

          Corporate religion so far serves no purpose except as a dodge for laws which have general application to the public or to justify discriminatory practices.

          • Susan Humphreys

            Religious rights aren’t linked to financial interests? What rock have you been hiding under? Religious beliefs are very rational, for the one that holds the beliefs, as well as those of us who understand human psychology and human nature. What is rational for the academic is NOT rational for the business man or many religious people. Rationality is in the mind of the beholder.

          • Larry: I hardly think this is reading too much into Citizens United and believe the logic behind that decision will be brought to bear on the current litigation. If there is some historical context that would mute the application, I would love to see it articulated.

            Political speech is not opportunism. Rather, it arises from deeply held beliefs. The views expressed on this issue center on deeply held beliefs of people whose beliefs could not be more different. It is that freedom of speech that the Citizens United ruling rightly recognized.

            So now we take one more step to discuss the source of those deeply held beliefs. In the case of Hobby Lobby for example, Christian faith is the source of those deeply held beliefs. The owners of such businesses are seeking relief from a law that requires them to violate their faith.

            You say religious rights are acknowledged as irrational yet you offer nothing in support of that outrageous assertion. I think you would be hard pressed to find any Jews, Muslims, Hindus, Buddhists, Christians, etc. who would agree with such a statement. The United States was founded on the idea of religious liberty. That may be an inconvenient truth for you Larry but the inconvenience of such a fact does not make it any less factual.

            In oral arguments I think the logic used in Citizens United will be much better received by the justices than the arguments you are putting forward here. I may be wrong but we will know soon enough. People of all faith traditions need to take notice. The open hostility towards expressions of religious faith which your views represent will not remain confined to Christianity.

          • No they aren’t. Your religious belief is independent of your financial interests. In many cases, your religious beliefs would be contrary to your financial interests. If you have a religion specifically for profit (that is willing to actually say they are) then you would have a point.

            You cannot say with a straight face and in all situations that being Catholic, Muslim or a Pastafarian directly impacts your income, or ability to do business. However a company can easily see how certain political elements such a:s regulations, property use rights, grants, taxes and even foreign relations can affect the bottom line.

            Religious beliefs are ONLY rational to the one who holds them. To anyone else, they are not. Therefore, they are not rational. There is certainly no rational element to supernatural thinking. It is purely subjective and personal.

            What is rational and what is not is of great concern to lawmakers. A rational belief can be changed or adjusted with various conditions. It can be justified to others who do not necessarily share the same belief and can be objectively supported.

            Religious belief is none of that. People are not expected nor obligated to change religious belief or adjust them to different conditions. Religious belief is never justified or objective beyond the believer. It is deeply personal. So religious beliefs and rational political beliefs cannot be considered similar under the laws.

            And corporate religious belief is still silly nonsense.

          • @Christopher

            Corporate political beliefs are not deeply held. Most people as individuals do not hold deep political beliefs. Certainly not like they would hold religious views. For corporations, political views almost always based on a bottom line. How do the political conditions affect the business.

            You want examples of corporate political speech which is pure opportunism, think how US/Chinese relations would affect Apple or Defense spending affects Lockheed. On local levels it can mean zoning laws, business regulations, corporate taxes. All of which can be affected by one political candidate or another.

            Hobby Lobby’s “deeply held beliefs” are a load of bullcrap. It is a sham to attack the ACA legislation and engage in niche marketing. Is the Christian faith of the company that of its owner (who is otherwise legally separate and distinct from his company)? What about the board of directors? What about its employees? Are they only of one faith? Do they have to be? There is no way a corporation can have a religious belief without violating every labor law in the book or running roughshod over the beliefs of anyone besides its owner.

            You want proof that religious belief is irrational, try this one. You believe in a supernatural entity, who defies all natural laws, controlling everything around you and have zero credible objective evidence of its existence. Yet belief in this being is strong enough to guide much of your actions. I was hoping you were intelligent enough that I didn’t have to explain that part.

  4. Susan Humphreys

    Larry the financial situation of the Catholic Church is the prime example of how their religious beliefs are completely tied up with their finances. Religion was a for the leadership a way to gather wealth and political control of the masses. Modern Capitalism is the same, all about wealth and control of the masses. The mega protestant churches in our country and TV evangelists are other examples. The message some of these mega churches promote is God wants you (and the Church) to be rich.

    • The catholic church does not tout itself as a for profit entity. It is a church with its own separate rules concerning political speech and it’s intersection with commerce. Apples and oranges here.

      A business is not a church nor can it be sanely treated as one. When a church acts like a business, it ceases to function as a church under our laws.

      • Susan Humphreys

        Actually Larry you are wrong, many churches function as businesses under our laws, they are large corporate enterprises, raising money, holding real estate, and other investments, operating storefront businesses (from second hand stores to major hospitals and universities–a business in the sense of selling a product and competing with other businesses for customers). Whether this is right or wrong is another issue.

        • No, they function as churches and own businesses, which are considered businesses under our laws. A church is not treated like a business entity nor visa versa by our culture or laws. Churches are held to a higher level of deference by our laws than businesses are expected to. They serve a cultural function that is meant to be divorced from commercial concerns.

          Is a house of worship considered a commercial facility? Are those donations during sunday services considered a profit-making activity? No. A church may have commercial interests but their management is not considered exercise of religious belief. Ultimately religious entities hold up the image that the money raised goes to keeping houses of worship operational and charity. Not the personal enrichment of its leadership. The Catholic Church may own businesses, property and other commercial interests, but the Papacy does not have stock options or profit sharing from them.

  5. Susan Humphreys

    Your concept of rationality is irrational. You seem to think that if you think something is irrational that means it is irrational. You are the one that is deluded. By your same logic there is nothing rational about political beliefs or laws! Beliefs can be justified and the Bible is used specifically for that purpose. This doesn’t mean the beliefs are good or moral or just in the legal sense, but for many to hear that God commands this and the Bible tells us this is so is justification enough for them to do what they do. For many of us that is NOT enough justification or sanctification for one’s actions. Is it rational for someone to do what they think God commands them to do, YES. IF that is they believe that there is a God and they believe what they have been taught about God and they are afraid that they won’t be saved. Their behavior is perfectly rational. For those of us that don’t believe in God and understand that the Bible is the work of men not the work of God, and haven’t bought into a set of religious doctrines/dogma and see the Bible as a test for us to see if we can determine what is and is not the right thing to do, then their behavior is unjustified but not irrational. THAT is the important difference between rational and irrational, just and unjust!

    • In my response to Christopher, I pretty clearly laid put why any religious belief can’t be considered rational. Belief in any supernatural authority is irrational in of itself. It’s a given.

      Your argument is so full of vitriol, it lacks basic common sense. Corporate political belief is based on how the political winds affect the bottom line. Since the Political controls and regulates the Commercial, it follows a basic rational flow.

      For example: Candidate X wants to reduce pollution in his state caused by Globo Chemicals. Rather than risk fines, loss of productivity or increased operating costs supports Candidate Y in response. Big oil companies like better diplomatic relations with the Middle East because they want drilling rights without diplomatic hang ups. Entertainment companies tend to support gay rights because of the disproportionate number of gays working there. Corporate politics can always be rationalized by the bottom line.

      Religion throws rationality out the window. It inspired zeal and dogged stubbornness well beyond hat can be argued with reason. It is personal in nature and goes beyond ones personal rational interests. In most cases it works against such things. This is why it s never applicable to a business nir the equivalent of mere political speech.

      • Susan Humphreys

        Larry you just pointed out how “rational” is in the mind of the beholder. Businesses can and indeed do rationalize their decisions by “the bottom line” as you put it. AND that can be very irrational behavior, actually harm their business as they pursue short term profits over long term sustainability as the recent Wall Street crises so clearly showed. They can and do pursue short term profits over environmental concerns that harm their own health. They can and do pursue short term profits over the welfare of their employees–without happy satisfied employees they may discover that products produced by those employees are substandard (monkey wrenching) and the company goes out of business. Sometimes rationalizing by the “bottom line” is very irrational behavior!

        • Not at all. Your stubborn refusal to see what is plainly obvious is showing how religious belief spurs irrational arguments.

          All you did was point out that some decisions are better than others. The fact that a business can clearly justify and support a position based on some objectively defined criteria, makes it rational. It doesn’t mean it is going to be the correct or best one.But it is one which can be explained without having to say something like “The Sky God commands me!!”

          So in the end, no corporate political actions are nowhere close to an equivalent religious belief.

          • Susan Humphreys

            Larry I am not a religious person. BUT I do have a basic understanding of religion and religious people, which you seem to lack.Sorry but many religious decisions, doctrines/dogmas are NOT based on arbitrary irrational claims that “the Sky God demands it”. That shows your total ignorance. A good example is to look closely at the dietary restrictions in Judaism. Pork was known to cause illness eventhough they didn’t know about trichinosis, so banning pork was a very logical and rational decision. Milk has long been used to soak wild meat, it is claimed it removes the gamey flavor by drawing out the blood from the tissue. Admonitions to not cook the kid in the milk of the mother are very rational and logical. That milk the kid was soaked in is tainted with blood and if not thoroughly cooked can cause serious intestinal problems, milk curdles at high heat and makes a dish cooked in milk kind of yucky. Saying that God demands this just lends authority to a rule/law and thus for a people raised not to question why, it commands obedience. The law is still very rational and logical and makes perfect sense.

          • Your “understanding” of religious decisions seems to lack basic common sense.

            Even your example of Jewish dietary restrictions is faulty here. Although such religious based rules made sense in ancient times and was rational for that period, carrying them over into the modern era would not be. Jewish people stay kosher not out of the ancient reasons but as a form of social cultural cohesion and divine command. To them God wants his people to be separate from the rest of society.

            Religious belief is treated differently because it inspires intense emotional/cultural feelings and actions which cannot be expected to be waived away or reasoned with. This is why it is such an important right. One is never expected to change their religious beliefs or alter them. This is the very opposite of how businesses get involved with politics. There is no equivalent in the business world to religious belief.

  6. Susan Humphreys

    Larry your culinary skills are lacking. The admonition about not cooking the kid in the mothers milk is still valid today for the reasons I explained–milk curdles at high heat, meat has to be cooked at high heat to be safe. We are still advised not to use the same cutting board (not separate kitchens, although that was the best alternative at that time) for meat products and vegetables to avoid cross contamination. Some of the old laws are just as valid today as when they were first written down although we now understand the reasoning and logic and sense behind the laws. Capitalism is as much a religion with all the emotions, the pitfalls, the abuses as Christianity or any other “FAITH”. You can’t seem to grasp or separate the facts from your prejudice.

    • As someone who has a good deal of relatives raised Jewish, I can tell you that keeping kosher in modern times has nothing to do with why it was important back in the day. It certainly has nothing to do with why to many of the Orthodox, some foods are only acceptable to eat after a Rabbi blesses it. It is social cohesion. An observant Jew sets themselves apart from the rest of the community with their diet and dress as a sign of solidarity with like-minded believers. It is akin to a uniform or open declaration of belief.

      “Capitalism is as much a religion with all the emotions, the pitfalls, the abuses as Christianity or any other “FAITH”.

      As much as corporate competition can get fierce, I sincerely doubt you would see General Motors waging a jihad against Toyota. I have never seen a corporate executive commit a suicide bombing on behalf of their company. You are not likely to see Iphone owners denying goods and services to people who have Android phones because of their deeply held love of the product. It is not a human rights violation to get someone to renounce their love of McDonalds for Subway. You will not be pilloried by the community, if you fail to accept Corn Flakes as the only breakfast cereal of choice.

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