RFRA & 1st Amend and Business Discrim against LGBT's--Business Loses Most Cases

The issue is whether religious-based objections by businesses to serving LGBT customers can overcome laws prohibiting such discrimination?  Do RFRA’s and/or the First Amendment trump such laws?  (It may be helpful to read the first post below first.) 

First, if there is no applicable law banning business discrimination against LGBT’s, there is no issue.  There is nothing for Freedom of religion to overcome. Only the government is bound by the First Amendment.   A few states have such laws (that is treated below).  There is no federal statute on the matter. The 5th and 14th Amendments requiring equal protection of the law only apply to governments. They do not apply to private businesses.  

Next, let’s go over First Amendment “free exercise of religion” rights.  The U.S. Constitution takes precedence over any state or federal law.  This is the bottom line.  Based in the case law, the basic principles are as follows. According the Supreme Court’s decision in Hobby Lobby, businesses and corporations have First Amendment freedom of religion rights, just like individuals.  They have this right against both state and federal governments.

Under the First Amendment, (According to Smith v. Employment Div.) if it is a neutral law of general applicability (not limited to any particular religion or specific religious belief), and does not implicate any other constitutional right (e.g. right of privacy), the Court does not require the government to meet the very difficult test of strict scrutiny (narrowly tailored to serve a compelling government interest).  This test is used in some situations, but not when the law is a general, neutral one.  A law banning LGBT discrimination by any business would be neutral law of general applicability (it applies to all businesses and is not aimed at a particular religion or religious belief). In this type of case, the government merely needs to show that the law is neutral and general and within the power of the states.  The states could, if they wanted, provide a religious exemption, but the First Amendment does not require that they do so. States have a general power to prohibit various types of discrimination.  Such a state law probably does not violate freedom of religion.  Under the Smith test, the business would not have a First Amendment right to discriminate.  Here we are talking about a business decision based on religious grounds.  We are not talking about discrimination in personal matters such as dating, marriage, etc.  These decisions are covered by the constitutional rights to privacy and liberty which would trump anti-discrimination laws, just like they trump laws requiring discrimination

 States have power to regulate commerce, as does the federal government when that commerce has an impact on interstate commerce.  Federal government power to enforce equal protection under the 5^thand Fourteenth Amendments cannot trump individual or private business  rights.  The federal government can only enforce equal protection against state and federal  governments. States can enforce their own equal protection laws against individuals and private businesses, but those laws must meet U.S. Constitutional standards. 

Could a federal law, under Congress’ power to regulate interstate commerce banning business discrimination against LGBT’s survive a First Amendment challenge?  The federal government can regulate individual conduct under the Commerce Power)  Maybe they could, but that opens up a whole new can of worms.  Let’s move on the RFRA’s. 

The federal and  most, if not all state RFRA’s require that government laws and acts that substantially infringe on religious practices must be justified by government by showing that it is narrowly tailored to meet a compelling government interest (strict scrutiny).  The federal and state governments can statutorily bind themselves to a rule which, in effect, provides greater protection than the First Amendment.  The federal RFRA applies only to the federal government.  A state law applies only in that state.   In the absence of a state RFRA, the state and federal governments must meet only the lenient test of the Smith case.  If there is a state RFRA the issue would then be whether the anti-discrimination statute can meet the  state statutorily mandated strict scrutiny test.  This test gives the business owner more, but not absolute protection. Arguably, preventing discrimination on the basis of sexual orientation by businesses is a compelling governmental interest.  If the statute is carefully written to be neutral and general, serves a compelling interest and is narrowly tailored (to minimize damaged to religious rights) it could overcome the RFRA.  Again, the business loses.

You might ask then, why did the business win in the Hobby Lobby decision? Remember, that was a decision under the federal RFRA only.  The feds lost because the provision in the Obamacare statute was not narrowly tailored.  The government could use other alternatives that would not place a substantial burden on religious belief. Had the statute been more carefully drafter (narrowly tailored) Hobby Lobby would have lost.

Bottom line, religious-based discrimination in business against LGBT’s will not be protected by the First Amendment.  A carefully drafter state anti-discrimination statute would pass most state RFRA’s.  The business is going to lose most of these cases.