A Religious Right To Discriminate?: Court Adopts Troubling Interpretation Of Religious Freedom Law

The Religious Freedom Restoration Act (RFRA) of 1993 was intended to protect the fundamental American value of religious freedom.

In the more than two decades since RFRA’s passage, however, the law has too frequently been misused and misinterpreted as a sword to harm others, rather than as a shield to protect religious liberty. In particular, some ne’er-do-wells have tried to manipulate RFRA into a tool that allows them ignore non-discrimination laws.

At Americans United we are fighting this distortion of the idea religious liberty by encouraging states not to adopt new RFRAs unless they contain provisions ensuring that they can’t be used to discriminate and supporting the Do No Harm Act, which clarifies that the federal RFRA protects religious liberty but cannot be used to harm others.

Unfortunately, in a decision that is as broad as it is troubling, a federal court, for the first time, ruled yesterday that RFRA not only allows harm to third parties but even allows employers to use religion as a justification for violating federal civil-rights laws – including Title VII of the Civil Rights Act of 1964, which is one of our most-cherished civil rights laws and bars discrimination in employment on the basis of race, sex, and other protected classifications. In short: the case held that a funeral home could fire a woman for being transgender, even though doing so violated Title VII, because RFRA gives the funeral home a religious trump card over the law. 

Aimee Australia Stephens is a transgender woman who worked for nearly six years as a funeral director and embalmer for the RG & GR Harris Funeral Home in Detroit. In 2013, she informed her employer and coworkers that she was going to undergo sex-reassignment surgery and begin publicly living as a woman. Explaining that “what I must tell you is very difficult for me and is taking all the courage I can muster,” she asked for their “patience, understanding, and support” because she had struggled her entire life living as a man.

The owner of the funeral home fired her two weeks later. Insisting throughout the litigation on referring to Stephens as a man, the funeral home owner explained that his problem with her was not that she is transgender but that she wanted to wear women’s clothes at work, violating the company’s dress code, which required men to wear suits and women to wear skirt-suits. The owner contended that he had fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.”

Religious freedom means the right to worship as you see fit -- not the power to discriminate against or harm others.

Stephens filed a claim with the Equal Employment Opportunity Commission, which determined that her rights had been violated and brought suit against the funeral home on her behalf. The suit claimed, among other things, that the funeral home violated Title VII by firing her because she is transgender, and by engaging in unlawful sex-stereotyping (i.e., forcing her to act in accordance with preconceived notions about how men and women ought to act to conform to their sex).

In an earlier decision, the court dismissed the first of these claims, holding that discriminating against transgender individuals is lawful because being transgender doesn’t fall within Title VII’s definition of “sex.” In its decision yesterday, the court went on to dismiss the sex-stereotyping claim also.

The court actually agreed with the EEOC that the funeral home’s dress code violates Title VII’s prohibition against forced gender stereotypes. Yet the court went on to rule that the funeral home is exempt under RFRA from Title VII – one of the nation’s most important civil-rights laws. In case you don’t remember, RFRA prohibits the government from substantially burdening someone’s religious exercise unless the government can show that it has a compelling interest in doing so and is employing the least-burdensome means to achieve that interest.

The court found that by enforcing Stephens’ legal right to not be required to dress according to gender stereotypes, the government had substantially burdened the religious exercise of the funeral home. The court then assumed – but bizarrely refused actually to acknowledge – that the government has a compelling interest in ensuring the equal protection of the laws for Stephens. The court also held that it was just too much to expect of the funeral home to make a single exception to its sexist dress code that would have allowed Stephens to dress as any other woman on the staff, because the government could instead have proposed a gender-neutral dress code that all funeral-home employees would have to wear. That, the court thought, would be less burdensome to the funeral home than simply allowing Ms. Stephens to wear a skirt in accordance with the funeral home’s own, established dress code. Hence, the court concluded that RFRA was not satisfied and ruled in favor of the funeral home.

The court’s opinion is just plain wrong – and dangerously so. RFRA is meant to protect the right of individuals to practice their faith as they please; it was never intended as a license to discriminate. And while this case deals specifically with the right of a transgender employee to the same fundamental legal protections as everyone else enjoys, nothing about the court’s reasoning is limited either to transgender individuals or to employment.

If the court’s legal reasoning were to prevail, businesses could exempt themselves from a broad range of critical civil-rights laws – including refusing to serve customers based on their race, sex, or religion – by the simple expedient of arguing that their religious beliefs support the discrimination. Until now, the courts have had little patience for these sorts of arguments and have been particularly rigorous in requiring that religious exemptions from generally applicable laws must not harm third parties (a body of law that the court did not even address). If yesterday’s novel decision is upheld, these fundamental legal protections against discrimination would be on shaky ground.

Religious liberty is a fundamental right. But it does not mean the right to discriminate and does not mean the right to avoid laws that protect everyone else’s fundamental rights. Yesterday’s decision underscores the reason why states should not adopt new RFRAs without provisions ensuring that they can’t be used to discriminate.

Stephens’ loss of the fundamental protections of the law highlights why AU is a strong supporter of the Do No Harm Act, a bill that clarifies that the federal RFRA cannot be used to harm others while, at the same time, preserves RFRA’s power to protect religious liberty.

If you, too, want to be a part of the push toward stopping the use of religious exemptions to harm others, visit our page on the Do No Harm Act and get involved. You can also let your member of the House of Representatives know that you want him or her to co-sponsor the Do No Harm Act.