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Freedom to Discriminate?

John Ragosta, author of Religious Freedom: Jefferson’s Legacy, America’s Creed, states that “…we must never return to a situation where people use their claims of religious freedom to avoid laws against discrimination…” Ragosta is a fellow at Virginia Humanities and lead faculty for Lifetime Learning‘s  Summer Jefferson Symposium at the University of Virginia.

We welcome your comments below.


January 16 is Religious Freedom Day, when we commemorate the adoption of Jefferson’s Statute for Religious Freedom. I would urge everyone to read that Statute, a profound and beautiful statement of religious freedom.


Jefferson, recognizing that America would be a “melting pot” of peoples from different lands, ethnicities, and religions, assured us that religious freedom protects “the Jew and the Gentile, the Christian and the Mahometan, the Hindoo and the infidel of every denomination.”

Increasingly, though, people are using religious freedom to justify repugnant acts.

Recently, a small town in Minnesota faced a request to permit a white-supremacist church in its community. Town officials, while appalled by the church’s doctrines, issued the required permit, correctly concluding that they had no right under the First Amendment to prohibit it. (John Reinan, “Minnesota Town Votes to Allow White Supremacist Church,” Star Tribune (Minneapolis), December 10, 2020.)

Freedom of religion includes the right to believe even abhorrent things. Jefferson made this point in the Statute: “to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy….”

At the same time, people engaged in otherwise illegal actions – from refusing to bake a wedding cake or give a marriage license for a gay wedding, to refusing to abide by COVID regulations, to refusing to allow an interracial couple to be married at a wedding venue – have claimed an exemption from the laws based on their religious beliefs.

Jefferson was equally clear that these claims do not deserve the constitutional protections of religious freedom.

What’s the difference?

For Jefferson, and for the Supreme Court, the right to believe is essentially unlimited. “Almighty God hath created the mind free,” Jefferson wrote; “all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness,…”


With this right to believe comes a broad right to worship as you think fit. A church can ban women from being ministers. (Unfortunately, the Supreme Court has recently expanded this ministerial privilege to allow churches to call virtually anyone working in their schools or commercial operations a “minister.”) A church can ban non-whites and preach repugnant doctrines.

Yet, everyone is subject to the law, regardless of religious beliefs. Jefferson uses the easy example of a religion that wishes to practice child sacrifice. Regardless of their religion, that would be illegal, and practitioners would be prosecuted.

Jefferson, though, gives a second example: What if, when the country was at war, Congress prohibited the slaughter of lambs because we needed wool for uniforms and the meat from allowing lambs to grow to adult sheep? Jefferson – obviously thinking of Jewish Passover – said such a law was enforceable and people could not avoid punishment by claiming a religious exemption.

The difference for Jefferson is that beliefs are personal; actions have legal consequences. As he explained in the Virginia Statute, while there should be no restraint or punishment based upon belief, there “is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order;…” James Madison said the same: “the immunity of Religion from Civil Jurisdiction,” exists only when “it does not trespass on private rights or the public peace….”

Jefferson understood that laws had to be “impartial,” not aimed at the religious practice per se. If a law forbade Jews from slaughtering lambs or forbade the slaughter of lambs for religious purposes, that law would not be impartial and would rightly be found unconstitutional.

The Supreme Court has adopted a similar doctrine of “neutrality.” Laws that neither promote nor discourage religion can be enforced regardless of someone’s religious beliefs. Congress can accommodate beliefs, exempting some practices from law because of their religious nature, so long as that accommodation does not itself promote the religious practice. So, for example, during Prohibition, sacramental wine was exempted.

This is what was at issue in the recent Supreme Court cases striking down COVID restrictions on churches. Those restrictions were said not to be neutral; they restricted churches more seriously than comparably situated businesses. (I have some doubts about those facts, but that doesn’t change the legal doctrine.)

In the Smith case (1990), the Supreme Court explained the neutrality doctrine in an opinion written by Justice Scalia; the Court allowed a prison guard to be fired for using peyote (a controlled substance under a neutral federal law). Congress might have exempted Native American religious practices from that law, but it had not done so.

President Bill Clinton signs the Religious Freedom Restoration Act in the White House Rose Garden on November 16, 1993.

After that decision, a sympathetic Congress, without a lot of careful consideration, quickly passed the poorly named Religious Freedom Restoration Act (RFRA). That law did not change the constitutional doctrine that there is no blanket religious exemption from laws, but it did stack the deck in favor of such religious claims.

Under RFRA, if a person claims that a federal law interferes with their religious practice, they are exempted unless it is shown that the government’s interest in passing the law was compelling and the law was narrowly tailored, i.e. there was no alternative that would equally serve the government interest while not interfering with the religious practice.

Those claiming a right not to bake wedding cakes or avoid COVID restrictions rest their claims on RFRA.

As I suggested, this law was not well thought out and should be repealed.

Claims of religious freedom have often been used to justify vicious and dangerous actions over our history. People claimed that their religion prohibited blacks and whites from dating (much less marrying) in their schools or businesses. Jews were excluded from businesses, housing, and educational opportunities based upon claims of religious freedom. All of those things are now illegal, and one would hope that the Supreme Court would find that the laws against racial and religious discrimination are based on compelling reasons and are properly tailored to their goals.


Now, claims are often made to avoid laws that prohibit discrimination based upon sexual orientation. That some of these claims have been successful in some courts seems implicitly to be based upon a conclusion that sexual orientation discrimination is not as serious as racial or religious discrimination. Those decisions, however, are best left to the Congress, and courts should not be forced into exempting people from anti-discrimination laws.

RFRA should be repealed, and Congress (and state legislatures) should use their authority to accommodate religious practices by excluding them from anti-discrimination practices only when doing so makes sense given the serious nature of the religious claim and the need for an end to the discrimination.

Jefferson would agree.

That brings us back to the church in Minnesota preaching white supremacy.

The law cannot prohibit it from doing so, but we must never return to a situation where people use their claims of religious freedom to avoid laws against discrimination in business, housing, commerce, and education.

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Thoughts on “Freedom to Discriminate?

    Thanks for this post. It’s a thought-provoking look at the play between religion and discrimination and the RFRA.


    John Ragosta writes that religious freedoms guaranteed by the First Amendment to the U.S. Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) should be recognized “only when doing so makes sense given the serious nature of the religious claim and the need for an end to the discrimination.”

    Let me suggest we think this through more carefully.

    Given the importance of religious freedom to the foundation of our country, and its position in the First Amendment of the Bill of Rights, to what extent do we want the government to be deciding how “serious” a religion’s beliefs might be? After all, the government changes hands periodically, so beliefs favored by one political side may not be so favored when the next change of political power occurs. Maybe we should leave the evaluation of the seriousness of religious beliefs with the adherents of various religions, to the greatest extent possible. At any rate, the First Amendment says that the government may not make a law prohibiting the free exercise of religion; it doesn’t talk about the free exercise of “serious” religious beliefs.

    As for “the need for an end to the discrimination,” Ragosta writes that “Jefferson uses the easy example of a religion that wishes to practice child sacrifice. Regardless of their religion, that would be illegal, and practitioners would be prosecuted.” I’m sure we can agree that baking a wedding cake is not in the same category as sacrificing children.

    Further, if wedding cakes are readily available from a variety of suppliers, then what exactly is the “need”? Why do we have to use the police power of the state to force one particular individual to use his or her artistic talents in a way that would violate his/her religious beliefs?

    We may not like those religious beliefs, but if the wedding couple can easily obtain a cake from another source, then we are prosecuting the baker not to make sure the couple can get a cake, but to use the power of the state to crush a person who holds unpopular views.

    I would hope we could also agree that we can provide more leeway to an individual artist (a cake baker who decorates his/her works) than we might to a large commercial enterprise that deals in transportation, energy, public entertainment venues, hotels, restaurants, finance, department stores, etc. We are capable of making these kinds of distinctions.

    If America is truly to be the land of the free, and if we truly celebrate diversity, then we are always going to have serious differences of beliefs and we will constantly be exposed to beliefs we consider obnoxious. In this state of liberty, we need to find ways to protect both the couple seeking a wedding cake and the baker whose religious beliefs forbid him/her from participating in that wedding. Not only can we do it, but thinking more carefully to find solutions like this could help reduce our current national polarization by reducing the government’s intrusions in people’s lives, at the same time as we are protecting our liberties and safeguarding diversity.


    It may well be that an accommodation is appropriate for small businesses or in other appropriate circumstances (e.g. peyote use by those practicing Native American religion). The question is who should make such accommodations. My suggestion is that Congress, in passing anti-discrimination laws, can evaluate when such accommodations are appropriate in light of “the serious nature of the religious claim and the need for an end to the discrimination.” (This was not a general rule for religious freedom protection as your comment suggests. Courts are required to give all adherents the protections of the First Amendment but, as both Jefferson and Scalia agreed, that did not include a right to ignore neutral laws.) The courts are particularly ill-designed to make such accommodations both because they do not (and should not) be in the business of evaluating the seriousness of anyone’s religious claim (courts will protect Pastafarians the same as Methodists) and because the Court has expanded religious freedom protections to include corporations (in another ill-advised decision). The problem with allowing people to decide on their own to ignore antidiscrimination laws (under RFRA) is that it will not apply simply to wedding cakes (which you may think unimportant); blacks, Jews, and others were effectively blocked from many commercial establishments until anti-discrimination laws were made clearly applicable.


    I agree with much of what is written in this article, including the desirability of the repeal of RFRAs. Where I part agreement, however, is on the desirability of the Scalia-invented doctrine proclaimed in Employment Division v. Smith. Justice O’Connor in her concurrence in the judgement alone, and Justices Blackmun, Brennan, and Marshall in their partial agreement with O’Connor and in their dissent were right, both constitutionally and morally.

    As Justice Blackmun wrote, “This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. Until today, I thought this was a settled and inviolate principle of this Court’s First Amendment jurisprudence.” And as Justice O’Connor wrote there was no need to change the well-established strict scrutiny standard in the case at hand because the state law in issue passed strict scrutiny.

    Although as with all historical counterfactuals, there is no way to know for sure, I believe we’d be in a much more equitable place today in regards to non-discrimination if Smith had been resolved without inventing a new, difficult (some would say impossible) notion of neutrality. The ideal resolution of Fulton v. City of Philadelphia this term would be for the Court to overrule Smith, apply strict scrutiny / least restrictive means analysis, and rule for the City. That’s not going to happen, but everyone would be better off if it did.


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