What is Religious Freedom?
By: Kyle Fiesler, Staff Writer
Several months ago, the Supreme Court of the United States held that same-sex couples had a fundamental right to marry, and no state may refuse to recognize a legally-binding same-sex marriage, performed in another state, based on its same-sex character.[i] However, on June 26, 2015, a few short hours after the Supreme Court’s holding in Obergefell, Kim Davis, elected clerk for Rowan County, Kentucky, refused to issue marriage licenses to anyone.[ii] Davis, who is an Apostolic Christian, claimed she had a sincere religious objection to same-sex marriage, and thus created her “no marriage licenses” policy to avoid distributing licenses to same-sex couples without discriminating against them.[iii] Several couples who were denied marriage licenses due to Davis’ refusal to issue them brought suit against her in an effort to force the clerk’s office to comply with federal law.[iv] But when Judge David L. Bunning of the District Court for the Eastern District of Kentucky granted a preliminary injunction in favor of the couples, Davis still refused to issue marriage licenses and was sentenced to jail for civil contempt of court.
Media accounts of Davis and her refusal to distribute marriage licenses under religious freedom grounds received a lot of attention, but offered no explanation of what “religious freedom” means. What does it mean? While the words on their face imply that religious beliefs are being protected, they do not say which are, how they are, or from what. Thus, this article is intended to give a brief overview of what it means to have “religious freedom” in the United States and to better understand what the right protects when religion and law conflict with each other.
The right of religious freedom stems from the first amendment of the United States Constitution.[v] Two clauses are found in the first sentence of the amendment, which states, “[1] Congress shall make no law respecting an establishment of religion, or [2] prohibiting the free exercise thereof.”[vi] The first, known as the “Establishment Clause,” prohibits the federal government from endorsing or forcing its citizens to practice or believe in a religion, while the second, known as the “Free Exercise Clause,” ensures that citizens will have the “freedom to believe and freedom to act” on their religious beliefs.[vii] By denying to issue marriage licenses to same-sex couples, Davis was raising her right to freely exercise her religion, as she believed the requirement that she authorize same-sex couples to marry violated her religious belief.[viii] However, as the Cantwell court indicated, the right to believe is absolute and may not be limited, but the nature of religious acts makes them incapable of being absolute, and thus conduct may be regulated by the State for the protection of society.[ix]
The Supreme Court developed a standard for regulation of religious conduct through case law. Originally, a law that limited someone’s free exercise of religion would be upheld if it was based on a compelling government interest and was narrowly created to effectuate that interest.[x] In recent years, however, the Supreme Court has eased the requirements for upholding laws that regulate religious conduct by no longer requiring a compelling government interest as justification for the law when it is “neutral and of general applicability.”[xi] The Supreme Court has stated that a law is not neutral if its purpose “is to infringe upon or restrict practices because of their religious motivation.”[xii] While “general applicability” is not defined, the Supreme Court has commented that “[t]he Free Exercise Clause protects religious observers against unequal treatment, and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.”[xiii]
As a result of cases such as Babulu, Congress enacted the Religious Freedom Restoration Act (RFRA), which prevents government action that “substantially burden[s] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government shows a compelling governmental interest created the burden and is the least restrictive means of furthering the interest.[xiv] Though originally intended by Congress to apply equally to state and federal government attempts to regulate religious conduct, the Supreme Court has limited the RFRA’s jurisdiction to federal free exercise challenges.[xv] Free exercise challenges to state policies are governed by Employment Div. v. Smith, which held that a State law will be upheld against a free exercise challenge so long as the law does not “attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs” (i.e., the law must be neutral and of general applicability).[xvi]
Referring back to Davis’s original religious freedom claim then, it would seem that she does not have much ground to stand against a court’s order requiring her to issue same-sex marriage licenses. Davis’s claim originates from Governor Beshear’s policy requiring her, and all other Kentucky clerks, to comply with the Supreme Court decision in Obergefell. To succeed, she would have to prove that the policy is not neutral and not generally applicable; more precisely, Davis must prove a state action targets religious beliefs and that it is being applied arbitrarily to regulate religious beliefs. However, as Judge Bunning points out in the preliminary injunction motion against Davis, the policy by Governor Beshear appears to be neutral because it addresses the need for Kentucky’s compliance with federal law after Obergefell by describing the decision’s legal effect (i.e., same-sex couples now have a fundamental right to marry) and then providing implementation guidance to county clerks.[xvii] On grounds that the policy suppresses religious practices, Davis’s only presented evidence that the Governor had refused to force Attorney General Jack Conway to appeal a federal district court’s decision that struck down Kentucky’s prohibitions on same-sex marriage in 2014, instead choosing to hire independent attorneys to do so.[xviii] This evidence, however, failed to show how Davis’s position was similar to the Attorney General’s – besides that both are elected officials. As Judge Bunning explained, Governor Beshear gave no exemption to Attorney General Conway because an Attorney General, like all prosecutors, has prosecutorial discretion to decide when, where, and how to bring a case; and such discretion is rarely capable of judicial review.[xix] Thus, Davis does not appear to have a right to refuse the issuing of marriage licenses to same-sex couples (or any couples), at least on religious freedom grounds.
[i] Obergefell v. Hodges, 2605, 2608
[ii] Miller v. Davis, 2015 U.S. Dist. LEXIS 105822.
[iii] Id.
[iv] Id.
[v] U.S. Const. amend. I (numbers added)
[vi] Id.
[vii] See Torcaso v. Watkins, 367 U.S. 488 (1961); United States v. Ballard, 322 U.S. 78, 86-88 (1944); Cantwell v. Connecticut, 310 U.S. 296, 304 (1940)
[viii] Specifically, Davis was challenging the Kentucky Governor’s order, following Obergefell, that all county clerks issue same-sex couples marriage licenses, in compliance with federal law. While no establishment issue was raised by Davis, the Court made an interesting observation that Davis, acting as a representative of the State of Kentucky, potentially violated the Establishment Clause when she denied same-sex couples marriage licenses. Miller v. Davis, 2015 U.S. Dist. LEXIS 105822.
[ix] Cantwell, 310 U.S. at 304.
[x] Sherbert v. Verner, 374 U.S. 398, 407 (1963).
[xi] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993)
[xii] Id. at 533-536 (finding local ordinance that forbade animal sacrifice was not neutral because of its focus on “rituals” and its built-in exemptions for other types of animal killings).
[xiii] Id. at 542-543.
[xiv] See 42 U.S.C. § 2000bb-1.
[xv] City of Boerne v. Flores, 521 U.S. 507, 512 (1997) (holding application of RFRA to state governments free exercise challenges was an unconstitutional exercise of Congressional power under Section Five of the Fourteenth Amendment).
[xvi] 494 U.S. 872, 882 (1990); Id. at 879 (quoting Justice Frankfurter in Minersville School Dist. Bd. Of Ed. V. Gobitis, 310 U.S. 586, 594-595 (1940): “Conscientious scruples have not . . . relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”)
[xvii] Miller v. Davis, 2015 U.S. Dist. LEXIS 105822.
[xviii] Id.
[xix] Id.; see also Bordenkircher v. Hayes, 434 U.S. 357 (1978) (holding prosecutorial discretion to bring most severe penalty upon defendant’s refusal to plead guilty did not violate defendant’s due process rights).
