Surely the most unpopular decision written by the late Associate Justice Antonin Scalia was the Employment Division, Department of Human Resources of Oregon v. Smith decision in 1990, which declared that freedom of religion has no protection from “neutral, generally applicable law.” Writing for the majority, he distinguished between law directly attacking a particular religious belief or practice, and law which only “incidentally” forbids religiously required action, or mandates religiously forbidden action. This is in sharp contrast to freedom of speech, which cannot be forbidden apart from incitement to “imminent lawless action.”
The reason for this restriction on a basic, historic freedom is that the limitless variety of religious requirements that might exist would make law which does not violate any possible requirement impossible. In the language of the court, simply by claiming a religious authority against any possible law, any person would be “a law unto himself.” While religious freedom still can have force against law incidentally denying it, it must be combined with some other right, the court held.
As was noted in an earlier article considering both freedom of religion and speech, free speech is easier to protect than freedom of religion, since the latter could potentially impact many laws, while speech that some or many people find objectionable impacts only a few laws, and can be tolerated in a practical way. Additionally, denial of free expression seems easier to recognize, but whether or not a claim is truly religious may be less clear. Thus free speech has been used as a means of protecting freedom of religion. It was so presented in the Masterpiece Cakeshop case (although not used by the court, except in Associate Justice Clarence Thomas’ concurrence), but was decisive in the Asher’s Bakery decision in Northern Ireland, where a baker was required to add words supporting same-sex marriage to a cake. But as Daniel Burns of the University of Dallas, whose presentation was summarized in the article cited above noted, freedom of speech is not by itself sufficient to protect freedom of religion, since the latter can involve many nonexpressive requirements (such as the sacramental consumption of particular substances).
Crucial to the denial of religious freedom where it conflicts with generally applicable law, however, is the requirement that the law be neutral. This is doubtful in the case sexual orientation and gender identity (SOGI) laws. These laws carry an intense moral imperative of not discriminating against homosexual persons or persons identifying as “transgender.” Such discrimination is commonly (although not universally) held to include discrimination against behavior, which this writer has repeatedly argued is impossible on the basis of equality. Thus it is only certain kinds of behavior (LGBT behavior) that may not be discriminated against.
Additionally, these laws are essentially educational projects, aimed at changing belief. In an important 2017 book, LGBT advocate John Corvino, Professor of Philosophy at Wayne State University, engaging religious liberty advocates Ryan Anderson and Sherif Girgis, argued that an essential purpose of SOGI laws is to “send a message about the harmfulness of anti-LGBT views” and to attack “sentiments that ought to be repudiated.” Thus they are not neutral. Their purpose is to attack opposition to homosexuality and transgenderism, and in our society, that opposition is primarily religious.
It might be argued these laws do attack a broader range of opposition to homosexuality or transgenderism than religious opposition, and so are not unconstitutional according to the Smith decision. But there can be no doubt that the principal opposition to LGBT behavior does spring from religious motivation. Further, a nonreligious opponent of homosexuality or transgenderism would have no strong reason not to accommodate LGBT behavior if he or she already accommodated LGBT persons generally when so required (in ways not complicit in LGBT behavior, such as baking a cake not to be used specifically to support LGBT behavior).
Remember here that laws ought to be obeyed even if we don’t like them, or think they are profoundly unwise. Only if the law requires evil action or inaction should it be disobeyed. And traditional religious believers in our society commonly do believe that God has commanded them not to be complicit in sinful behavior, making such complicity evil. Thus the insistence that nondiscrimination against LGBT persons include nondiscrimination against their behavior really only has force against religious objectors to homosexuality and transgenderism. It is really an attack on religious belief and practice, just as law that forbids street preaching while allowing political or labor picketing would be identified as a prohibition of the free exercise of religion.
A point raised against freedom from complicity in LBGT behavior is that there is no specific prohibition against complicity of this particular sin in any sacred text, nor in denominational statements. But many of these authorities certainly do identify homosexual behavior and what could reasonably be called transgender behavior as sinful, and identify complicity in sin as sinful in itself.
One need not agree with the Employment Division vs. Smith decision to be able to use it against SOGI laws, or at least against the controversial way SOGI laws are interpreted. Few people, including likely few devoutly religious people, want to refuse general social or business engagement with homosexual or transgender persons, but do object to complicity in their behavior. Indeed, who would risk their business or job because of animosity toward LGBT persons? That risk is only accepted from a belief that God has commanded that people not be complicit in sinful behavior. And that aspect of these laws, at least, is unconstitutional, even under Smith jurisprudence, because it has little other effect than to prohibit religious practice and attack the belief behind it.