Does the Religious Freedom Restoration Act of West Virginia violate the US Constitution?
In the wake of Obergefell v. Hodges, some states have enacted measures described as “religious freedom laws” that seek to protect individuals, businesses, and organizations from legal action if they deny services to lesbian, gay, bisexual, and transgender people — mainly, individuals pertaining to the LGBTQ+ community — when this refusal is based on sincerely held religious beliefs or convictions. In this context, the state of West Virginia recently passed the “Religious Freedom Restoration Act” (RFRA) that will enter into force soon.
Section §35-1 paragraph (a) of Article 1 of the Act declares that no state action may:
(1) Substantially burden a person’s exercise of religion unless applying the burden to that person’s exercise of religion in a particular situation is essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest; nor
Section §35-1 paragraph (a) of Article 1, West Virginia House Bill 3042.
(2) Treat religious conduct more restrictively than any conduct of reasonably comparable risk; nor
(3) Treat religious conduct more restrictively than comparable conduct because of alleged economic need or benefit. 1
This writing reflects on the constitutionality of laws governing religious freedom laws in the face of a challenge by an interested party and has been granted certiorari by the Supreme Court of the United States of America.
In Obergefell v. Hodges, the question raised was whether the fourteenth amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right. A divided Court answered in the affirmative through a 5-4 majority opinion delivered by the then Associate Justice Kennedy, alongside a dissenting minority, and concluded that “The Court holds same-sex couples may exercise the fundamental right to marry in all States.” 2
Some might argue that the matter at hand is one of conflict between Constitutional rights. This cannot be answered before reflecting on a decisive question: Is the right of non-heterosexual persons not to be subject to discrimination by private business owners in their private relations with them a compelling state interest or a fundamental right that can justify state intervention in religious and commercial freedom of such individuals by holding them liable for such discriminatory behavior?
The Supreme Court’s majority opinion in Obergefell v. Hodges reiterated that the “right to liberty under the Due Process Clause gives them (same-sex couples) the full right to engage in their conduct without intervention of the Government. ” The Due Process Clause of the Fourteenth Amendment 3 prohibits states from infringing fundamental liberty interests unless the infringement is narrowly tailored to serve a compelling state interest. As far as the sexual orientation of the LGBTQ+ community goes, and contrary to the freedom of religion, the Court has never until this day declared that the LGBTQ+ community’s sexual orientation matters constitute a “compelling state interest”. This is insufficient to justify government intervention and restriction of individual liberties. Nor did the Court ever declare that such sexual orientation is a fundamental right, one that is “deeply rooted in the Nation’s History and tradition“. Thus, no reasonable, credible legal scholarship can affirm that the issue at hand involves a conflict between Constitutionally protected rights. It may be regarded as a conflict between a right, and a Constitutionally protected right.
However, the major issues raised by the religious freedom laws differ from those raised by the aforementioned precedent. It is not merely about same-sex couples’ right to be treated equally by their government, or even their brothers and sisters in citizenship. In fact, the matters at hand go beyond the rights discussed in Obergefell v. Hodges or previous similar cases such as Lawrence v. Texas which is solely concerned with sexual orientation and Marriage equality. It is more a matter of religious freedom and the liberty to practice one’s religion freely, even, and especially when, it conflicts with others’ beliefs and convictions, or when it is unpopular to do so, as long as no compelling state interest is threatened, and no other conflicting individual freedom is impaired.
It is also imperative to acknowledge another constitutional question raised by religious freedom laws, one that I consider of the utmost importance: the freedom of commerce and trade. That is one’s right to manage his own business as it pleases him, in accordance with one’s freely accepted convictions and values. For we consider the right to administer one’s own business in a way that embodies his views and satisfies his personal purpose as a fundamental economic principle of today’s world. Methodically put, this matter can be asked as follows: Can a person conduct their business relations with customers according to their personal religious views and even when those beliefs lead to discriminatory business conducts on the basis of sexual orientation?
This question, in a democratic system such as the one pioneered by the United States of America, has a clear-cut answer when it comes to discrimination conducted through governmental action. The Supreme Court of the United States required all states to recognize same-sex marriage lawfully registered by another State that does grant marriage equality, a requirement that was operated under the Equal Protection and the Due Process Clauses less than a decade ago. This reaffirmed another time the Court’s liberal and progressive orientation in matters regarding sexual orientation and marriage equality.
How would this Court not firmly oppose any discriminatory governmental behavior such as the denial to provide certain services to people on the basis of their sexual orientation? Undeniably, such behavior, if conducted by the government, would be struck as unconstitutional, for infringing the rights of individuals protected by the Fourth and the Fourteenth Amendments. 4
Nonetheless, it is not the same when such behaviour is conducted by private parties. In any case, let’s begin by reminding that the Bill of Rights does not regulate nor interfere in the relationship between the individuals themselves. The rights contained in the Bill only regulate Governmental intrusion in individual liberty by limiting and delimitating such intervention, but no individual private party can be considered as violating, by his own individual private conduct, the Fourteenth or the Fourth Amendment of the Constitution.
This is why, to the question asked above, it is legitimate to answer a clear and confident YES. As Justice Kennedy put it in the Majority opinion in Obergefell v. Hodges: “Religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned”.
And those same persons can freely run their business relations in accordance with such religious doctrine, as long as no harm is caused to others.
No public authority, nowhere, and in no time, should have a say in whether the business owner or the service provider wants or does not want to engage in a commercial relationship with X or Y person.
In fact, the free market guarantees all types of demands an appropriate supply, meaning that the customer still has an endless competing market to satisfy their need or offer them the service they desire.
Let us add to what was said the following: it seems unwise to oblige businesses to deal with persons with whom they do not wish to deal because such unfree choice, non-consensual interaction will generate grievance in the hearts of the obliged. It will only strengthen their belief and reassert their initial unfriendly sentiment towards a given community, which may lead to unwanted increased social tensions.
Hence, the answer is negative to the question: “Does a statute that protects the distinction between heterosexual and homosexual people by their fellow citizens or by private parties on the basis of sincere religious beliefs violate the Constitutional right to be let alone, or the Fourteenth Amendment Due Process or Equal Protection clauses?”.
As previously said, these private parties are merely practicing their constitutional right to freely express their religious beliefs and live by them. And thus they enjoy the same right to be left alone as those who may feel offended by their behavior. Whether customer or service provider, both can avoid engaging in commercial relations if they desire to, and can go seek the service or product elsewhere in the market.
If this West Virginia Statute was to be challenged, the Constitutional rights that could serve as a ground for the petitioners will be the same as in the aforementioned cases — the right to privacy and to be let alone, as well as the fourteenth amendment clauses mentioned above.
As for the outcome of the challenge, if the Court was to grant the petition certiorari, the outcome would most probably differ from what was decided in previous cases that required from the States a certain change of behavior (as it did in Lawrence v. Texas back in 2003) or a change in the functioning of institutions, as it did in Obergefell v. Hodges back in 2015.
The Court cannot reasonably believe that it can oblige all actors of the private sector to step on values they hold as the bedrock of their endeavor. If it was about restricting such behavior when done by public officials, the Court’s opinion would be in accordance with mentioned precedents. But the case is different, for it is the private sector that is in action here. This is why, it is more likely that the Court’s majority, especially as it is currently composed, will uphold the Religious Freedom Restoration Act of West Virginia, if challenged, and declare its constitutionality.
Published Author. Former Chairman of the Human Rights Commission in the Lebanese Youth Parliament. Extremely passionate about politics, economics, and social issues around the world.
- Section §35-1 paragraph (a) of Article 1, West Virginia House Bill 3042.
- U.S. Supreme Court, Majority Opinion, Obergefell v. Hodges, 2015.
- Section 1 of the 14th Amendment to the U.S. Constitution establishes, among other principles, the Due Process clause: “ No State shall (…) deprive any person of life, liberty, or property, without due process of law (…) ”
- U.S. Constitution, Fourth Amendment: “ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”