Gloria Browne-Marshall

Everyone is in the fight. Politicians, religious leaders, gay rights activists, and business owners all claim they are concerned about freedom. Recent laws based on religious freedom have raised fears that religion will be used to justify prejudices.

In 20 states, laws have been passed that shadow a Federal law called the Religious Freedom Restoration Act, or RFRA. The Federal RFRA was signed in 1993 by President Bill Clinton, allowing a Native American man to use peyote in a religious ceremony. However, RFRA has been used by conservatives as a means to side-step certain laws and to discriminate based on claims of religious interference.

Federal RFRA formed the basis for the recent Hobby Lobby case in 2014. In that case, the U.S. Supreme Court decided in favor of the religious owners of the Hobby Lobby business, who claimed the Affordable Care Act would have forced the company to provide contraceptives to employees under their medical coverage. Since contraceptives ran counter to the owners’ religious beliefs, the Court found that the business could also have those religious beliefs in holding in favor of the business owners.

The predecessor of the Hobby Lobby case was the 2010 Citizens United case where the Court decided that a corporation possesses First Amendment rights. When coupled with the recent Hobby Lobby case, the Supreme Court has now ruled that it is not just the corporation, but also the business owners that can possess and exercise constitutional rights. These two Supreme Court cases thus form the basis for the current controversy over religious freedom which began when businesses such as caterers or wedding planners chose not to provide wedding services for same-sex couples.

Enacted state RFRA laws allow private businesses to turn away customers if the requested services conflict with religious beliefs or values of the owners. Gay rights activists argue that under these laws, gays will be subject to discriminatory practices under the ruse of protecting fundamentalist religious freedoms. State law-makers, mostly conservatives, counter by asserting business owners should not have to place their religious beliefs aside when their business is faced with same-sex customers requesting certain services.

The legal result of these state RFRA laws would allow business owners to use their religious beliefs as an affirmative defense if a gay customer brought a discrimination lawsuit for failing to provide requested services based upon sexual orientation. Under these laws, no evidence is needed to support the sincerity of these beliefs. Gov. Mike Pence, a Republican, signed the law in late March amid protests from businesses like Apple, which is questioning its plans to expand operations in Indiana.

Tim Cook, CEO of Apple Computers, said the law could be used to protect businesses that refuse to serve gay people. “On behalf of Apple, I’m standing up to oppose this new wave of legislation,” he said.

Indiana’s law will go into effect in July. Arkansas passed similar legislation on March 31; however Gov. Asa Hutchinson said April 1 that he would not sign the legislation in its current form, because it does not mirror federal law.

Protesters are concerned that religious freedoms could now be claimed by private businesses who do not want to serve customers based on race, religion, creed, gender, color, or nationality. Such would circumvent, among other things, the 2013 Supreme Court decision which struck down a federal law that recognized marriage as only between a man and a woman.

As a result of this controversy, the time is now ripe for the Court to decide where the line should be drawn when it comes to gay marriage and religious freedom.

Gloria J. Browne-Marshall, an associate professor of Constitutional Law at John Jay College, is the legal correspondent for AANIC (African-American News & Information Consortium).