Left Behind

The Growing Battle Over Religious 'Refusals'—And How Americans United Plans To Respond

I want to do the right thing,” said Jennifer Schoenrock of Waynes­ville, Mo.

Schoenrock, a court clerk in Pulaski County, recently informed the conservative World magazine that the “right thing” is to refuse to issue marriage licenses to same-sex couples, even if the Supreme Court makes marriage equality the law of the land this month. Couples who come in seeking licenses, she explained, “are like my kids. I can’t do it.”

Kellie Fiedorek, an attorney for the Alliance Defending Freedom (ADF), argued to World that officials like Schoenrock do indeed have a right to refuse to issue licenses. As evidence, she cited state versions of the federal Religious Freedom Restoration Act (RFRA) and added, “Regardless of whether a state has a RFRA or not, individuals still have state and federal protection.”

That claim is hotly disputed by LGBT rights and civil liberties organizations like Americans United for Separation of Church and State, which say that Schoenrock is simply refusing to do her job and should be terminated, since issuing licenses is a central responsibility of her publicly funded position.

Schoenrock, however, calls herself a “conscientious objector” and argues that she has a religious-freedom right to abstain from serving same-sex couples, even though she works for the government. 

It’s not an isolated debate. All over the country, public officials and business owners have refused service to same-sex couples, and others have indicated they intend to do so if marriage equality becomes legal in all 50 states.

The legal landscape is complex: LGBT individuals aren’t a federally protected class and as a result, it’s permissible to discriminate against them in most areas. Some states and municipalities, however, have enacted anti-discrimination laws that prohibit business owners from turning anyone away on the basis of sexual orientation.

But those laws haven’t deterred some devout business owners from discriminating anyway. These people have consistently argued they have a religious-freedom right to ignore laws that conflict with their personal beliefs. Although the U.S. Supreme Court hasn’t yet issued a definitive ruling on the subject of equality, experts say that its verdict in Burwell v. Hobby Lobby Stores is directly responsible for the rise of so-called “religious refusals” cases.

Ayesha N. Khan, Americans Un­ited’s legal director, said that business owners may try to use the decision – which held that the federal Religious Freedom Restoration Act gives religious-freedom rights to for-profit corporations – to demand generous religious exemptions from laws they consider objectionable.

Hobby Lobby held that for-profit corporations owned by individuals who have a religious objection to contraception are entitled to an exemption from the contraceptive-coverage requirement of the Affordable Care Act,” Khan explained. “The decision will make it more difficult for the government to enforce certain laws when there’s a conflict with someone’s religious beliefs.

“Although the ruling applied specifically to the federal RFRA, it has implications for state RFRAs, too, and that could have major consequences for civil rights. Indeed, some have interpreted the decision to redefine ‘religious freedom’ into a license to discriminate,” she added.

The ADF’s latest high-profile cases do focus specifically on the conflict between civil rights law and fundamentalist religious beliefs.

Exhibit A: Aaron and Melissa Klein. The Kleins, who own Sweet Cakes by Mel­issa in Gresham, Oregon, refused to bake a cake for a same-sex couple’s wedding.

Oregon’s Equality Act prohibits discrimination on the basis of sexual orientation, and the affected couple soon lodged a complaint against the bakery. The courts repeatedly ruled against the Kleins’ religious-freedom arguments, and they were recently ordered to pay $135,000 in damages.

Another case, Ingersoll v. Arlene’s Flowers, now rages in Washington. Barronelle Stutzman, the Southern Baptist owner of Arlene’s Flowers, refused to provide services to a couple for their same-sex wedding, which violated state anti-discrimination laws. Her religious-freedom defense hasn’t gained much legal traction, but Stutzmann has appealed the most recent ruling against her, arguing that she deserves an exemption from the law because of her religious beliefs.

A third case, Elane Photography v. Willock, also ended badly for the Religious Right. The New Mexico Sup­reme Court rejected a fundamentalist photographer’s argument that she had a religious-freedom right to refuse to photograph a same-sex civil-commitment ceremony. The court upheld the state’s anti-discrimination law, and the U.S. Supreme Court refused to hear her appeal, which leaves the state supreme court verdict intact.

Despite these losses, the ADF seems committed to the refusals fight – and so are its colleagues within the Religious Right.

The ADF and other groups are portraying people like Stutzman, the Kleins and Schoenrock as folk heroes. And if the Religious Right has its way, there will be a lot more of them in the years to come.

At a recent press conference, Liberty Counsel’s Mat Staver announced that he and his allies intend to engage in “civil disobedience” if the Supreme Court legalizes same-sex marriage.

At another press conference, far-right activist Janet Porter announced, “I’m telling you that if the court dares to issue another Roe v. Wade, in this case the Roe v. Wade for marriage, we will not obey it. We’ll go to jail if we have to go to jail, but we will not bow to this agenda and violate our beliefs in God.”

To AU’s Khan, the “civil disobedience” language employed by Porter and Staver is misguided. 

“Civil disobedience has played a powerful role in our past, but that is so when it is used to ensure that minorities gain the same access to public accommodations as those in the majority. Here, it is being used to justify the denial of access,” Khan said.

“It’s obvious that they consider it unjust for people like the Kleins to be forced to obey anti-discrimination laws,” the AU legal director added. “But in our view, the government’s interest in protecting innocent third parties from invidious discrimination in the commercial sphere has to take precedence over an individual’s personal religious beliefs.”

And she says Americans United is prepared to respond to the Religious Right’s refusals claims.

“We’re a First Amendment organization,” Khan explained. “Defending religious freedom is at the heart of what we do. But religious freedom isn’t a license to deny access to public accommodations on the basis of an individual’s status – any more today than it was during the Jim Crow era.”

The organization is preparing a comprehensive strategic campaign to counter the increasingly heated rhetoric from fundamentalist groups incensed at the advance of same-sex marriage.

It won’t be an easy task: Staver’s “civil disobedience” speech is relatively moderate compared to statements made by other members of the Religious Right.

Focus on the Family founder James Dobson recently told WorldNetDaily, a far-right website, that “conservative churches will be dragged into court by the hundreds.”

Dobson larded on the scare talk, writing, “Their leaders will be required to hire people who don’t share the beliefs of their denominations and constituents. Pastors may have to officiate at same-sex marriages, and they could be prohibited from preaching certain passages of Scripture. Those who refuse to comply will not only be threatened legally, but many will be protested and picketed by activists. Perhaps this is a worst-case scenario, but maybe not. Prison is also a possibility.”

Khan said Dobson is engaging in fear-mongering.

“The First Amendment allows pastors to preach against marriage equality,” Khan noted. “And they can’t be forced to officiate same-sex marriages if those ceremonies violate their beliefs.

“The other side’s need to erect these fictitious bogeymen points to the weakness of their position,” she added.

To Americans United, the legal tactics employed by the ADF in defense of the Knapps and others illustrated the need for a strong and coherent counter-campaign. According to Khan and others at the organization, the campaign will monitor and, when necessary, marshal proactive legal efforts aimed at restricting what AU considers to be dangerously broad religious exemptions.

It also means opposing bad laws. 

Advocates like Khan may not believe there’s much to the Religious Right’s claims of persecution, but some elected officials have been moved by its tales of “persecution” spun by the Religious Right. 

The result: A spate of “religious freedom” bills in state legislatures that legalize discrimination by public officials and undermine existing civil rights protections. Some have been framed by their supporters as state versions of RFRA. But opponents argue that these proposals are often written much more broadly than the federal RFRA.

In Indiana, RFRA supporters asserted that their version mimicked the federal version, but that simply wasn’t the case. Americans United pointed out that Indiana’s proposed RFRA was indeed written differently than its federal counterpart. The Indiana bill was designed, in fact, to explicitly permit anti-gay discrimination, even in municipalities that had laws shielding LGBT people from bias.

Gov. Mike Pence (R) signed the bill, but after a public outcry, he ordered legislators to re-work it. The revised version is better than its predecessor, advocates say, but it doesn’t go quite far enough; discrimination is still legal in large swaths of the state.

Despite the outrage over Indiana’s RFRA, legislators in other states proposed similar bills. Louisiana lawmakers are currently debating the fate of H.B. 707, which would, if passed, give business owners, therapists and doctors freedom to discriminate.

“Even with amendments, the bill still allows for-profit businesses, non-profit service providers receiving public funding and licensed professionals such as doctors to deny services to clients without endangering any grants, contracts or state licensure; in short, it still allows them to discriminate even if that is not the bill’s stated intention,” Equality Louisiana’s Matt Patterson told the New Orleans Times-Picayune.

Maggie Garrett, Americans Uni­ted’s legislative director, says that AU intends to target these bills, too.

“Half the battle is stopping bad laws before they pass,” Garrett explained.

The organization’s Legislative Department has already actively opposed H.B.707, Indiana’s RFRA and other pieces of legislation that would, in Americans United’s view, undermine civil-rights protections. Staffers rally local supporters, submit testimony to lawmakers and work with political allies to ensure victory.

But the new campaign, specific details of which will be announced shortly, is designed to make those efforts easier – and more effective – by organizing “refusals” cases under a common header, with a slew of resources devoted to fighting them.

Americans United is hiring new staff dedicated to the refusals issue and will be launching a new web-based digital campaign intended to encourage people to report discriminatory incidents to the organization’s legal team.

The campaign has an educational mission, too, because it focuses on complex legal and legislative matters.  As part of the effort, Americans Un­ited will monitor discriminatory incidents and provide up-to-date information on bills that appear to be inspired by refusals cases.

Those cases typically encompass broad territory. Incidents involving LGBT rights are the most common, and no one seems to believe that the advent of marriage equality will shift that trend. But if civil-rights laws are successfully undermined to allow broad religious exemptions for businesses, officials and even doctors,   advocates say there will be consequences for a number of com­­­­­­­­mun­ities, including religious minorities and women.

“These ‘religious freedom’ bills are typically written so broadly that they could allow a business owner to refuse service to an atheist or to any other individual who lives a ‘lifestyle’ to which the owner objects,” Khan said. “The threat to civil rights is very clear, and it isn’t going away any time soon.

“Neither is Americans United,” she added.

More details about the new campaign – and information about the Supreme Court’s decision on marriage equality – will be featured in future issues of Church & State.