Page 66 - Freedom in the world_Neat

The Supreme Court’s decision in Smith remains among its most controversial, and ongoing
litigation under RLUIPA and RFRA may well provide the court with an occasion to
reconsider that decision and, along with it, the scope of protection afforded under the Free
Exercise Clause.
Church Autonomy or Antidiscrimination? As described above, the Constitution prohibits
government from engaging in religious discrimination, and statutes may reinforce that
protection by providing an additional measure of accommodation and deregulation. But
statutes perform another important religious-freedom function in American law. Federal,
state, and local governments have established a broad network of statutory prohibitions
against religious discrimination by private actors in a wide range of economic activities—
most notably employment, but also housing, public accommodations, education, and many
others. These laws were passed principally to combat racial discrimination, but they almost
always prohibit discrimination based on religion as well. Foremost among these statutes is
Title VII of the Civil Rights Act of 1964, the federal protection against discrimination in
employment.
These laws provide an important protection for the religious liberty of individuals, in that
they prevent people from having to choose between observing their faith and making a
living, finding housing, or having access to various goods and services in the marketplace.
But the laws pose a risk to religious organizations by interfering with their ability to
choose their members and leaders based on religion. So, for example, a synagogue must
be able to consider religion in its decision to hire or fire its rabbi. In order to respect this
important right, Title VII (like most of its state-level analogs) exempts religious
organizations from the otherwise applicable prohibition on religious discrimination.41
Recently, this tension between antidiscrimination statutes and the right of religious
organizations to choose members and leaders based on religion has come to the fore in
two controversial areas: the faith-based initiative and gay rights.

First, when the government purchases social services from a religious organization, some
have argued that the organization waives its right to hire based on religion, on the theory
that government should not fund “discrimination.” Others argue that the “discrimination”
government would fund in this context is not pernicious, but constitutionally protected
activity that is indispensable for any religious organization (or, indeed, any expressive
association) to maintain its message and mission over time.

Second, religious groups that teach that homosexual conduct is immoral—and
correspondingly hire and fire employees based on their agreement with that teaching—will
likely find themselves at odds with the growing number of laws prohibiting discrimination
based on sexual orientation. Additionally, in jurisdictions where same-sex marriage is legal,
religious groups whose convictions prevent them from treating legally married same-sex
couples exactly like legally married different-sex couples will face an additional layer of
conflict.

In both contexts, the disputes are only beginning to percolate through the courts, and it
remains unclear how they will ultimately be resolved.

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