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Listen: ACLU Director Dan Korobkin ’02 on First Amendment-Based Religious Refusals and the Supreme Court

Listen: Of Wedding Cakes and Funerals

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In “Of Wedding Cakes and Funeral Homes: Religious Refusals of the First Amendment and the Supreme Court," a lecture sponsored by the Political Science Department, Dan Korobkin ’02 speaks about his work with the American Civil Liberties Union and Constitution Day 2019. Korobkin is working on a case that will go to the Supreme Court this fall regarding free exercise of religion claims.

“This clash of values is going to be in front of the Supreme Court in the near future. It’s going to dominate a lot of our constitutional debates for some time to come, and I see it as one of the great threats to civil rights and civil liberties over the long term,” says Korobkin. “But I don’t think it’s always a black-and-white and simple issue, and so that’s why it’s a perfect topic for a Constitution Day talk.”

Korobkin, who graduated with honors in philosophy and political science, is the legal director of the ACLU of Michigan. He litigates on a broad range of civil rights and civil liberties issues, including criminal law reform, LGBTQ rights, and freedom of speech and religion.


Audio Transcript:

Carol Nackenoff: Good evening, everybody. I'm Carol Nackenoff from the Political Science department. AWOL this year on sabbatical. Nonetheless, I am always happy to organize Constitution Day for the College and I'm especially happy this year because the speaker is someone I know from my past. He was a student here, graduated in 2002, Dan Korobkin. And September 17th is the day of Constitution Day. It's the day the delegates who were gathered in Philadelphia since mid May of that year and who had drafted a new Constitution, signed the document. Although a few people who stayed until the bitter did not. Only the final week, did the absence of a Bill of Rights get raised at the convention. George Mason of Virginia, one of three delegates who stayed until the end but ultimately refused to sign was one of the people who was... say, "Well, what about this?"

James Madison who's considered the father of the Constitution and many other people didn't see the point. The federal government would never be able to have the power to encroach on state Bills of Rights and therefore on the rights of individuals. Besides, it was hot. The windows had been shut all summer because they were afraid that people might overhear what was going on and they had a pledge of silence for 50 years. But they wanted to go home and when people like George Mason raised the issue about the absence of Bill of Rights, they said, shut up.

And yeah, when many of us think about the Constitution, we first think about the Bill of Rights and the protection of individual rights and liberties. It was very soon clear that the Constitution wasn't going to garner the necessary assent of 9 states to put the new government into effect without some assurances about rights.

Madison, at Jefferson's urging, eventually proposed 12 articles of a Bill of Rights. Ten of which were adopted, shortly after the ratification of the Constitution and ensuring that this new government went into effect.

Constitution Day and Citizenship Day officially recognized by Congress in 2004, and in 2005 the Department of Education held that educational institutions that received federal funds, that included Bell Grants, which some of you may have, should mark Constitution Day with some kind of activity that reminds members of the community about the values enshrined in the Constitution. And so, it is fitting that we mark the event this year with a focus on Amendments to the Constitution. The 1st Amendment, and also I would say, the 14th Amendment added after the Civil War with its provision that promised to promote equal protection under the law.

Title VII of the Civil Rights Act of 1964 is in that spirit of the equal protection amendment. Although, the equal protection amendment parenthetically only bars state action. The Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race or sex. The prohibition against discrimination on account of race or sex has become part of our Constitution of culture as William Eskridge at Yale University suggests.

But what does it mean to discriminate on account of sex? In the current term, the October 2019 term, the supreme court has accepted three cases in order to consider whether language in Title VII of the Civil Rights Act, because of sex, on the basis of sex, encompasses employment discrimination based on sexual orientation. The Equal Employment Opportunity Commission has said yes, as of 2015 they started to argue that that was encompassed. And two circuit courts have now agreed with that. Holding. Pointing to the EEOC ruling as part of the rational for their holding. However, in 2017, the justice department under Attorney General Jeff Sessions disavowed that position. Basically saying the EEOC is not speaking for the United States and it's position about the scope of Title VII is entitled in no difference beyond its power to persuade.

So one of these cases, the three cases that the supreme court is going to look at this fall, comes out of Michigan. It was filed by the Michigan ACLU and its new Legal Director, Daniel Korobkin, Swarthmore Alum of class of 2002. The court has been grappling with how to balance free exercise of religion claims, 1st Amendment, against enforcing generally applicable laws, anti-discrimination laws when it comes to: How do you deal with small businesses who claim exemption from generally applicable non-discrimination laws providing certain services to LGTBQ citizens. Thus, the title of tonight's talk, of Wedding Cakes and Funeral Homes, Religious refusals of the 1st Amendment and the Supreme Court.

Dan, our speaker, has been with the ACLU of Michigan since 2008. He's served as a Deputy Legal Director for the past five years and has very recently been elevated to the position of Legal Director. He litigates a broad range of civil liberties issues in Michigan, including free speech, juvenile justice, poverty, drug law reform, LGBT rights, religious liberty, police misconduct, prisoners rights, and he also teaches occasional courses at the University of Michigan Law School.

Dan spearheaded the ACLU Michigan fight to end the states practices of sentencing children to life in prison without the possibility of parole. He challenged the unconstitutionally unconstitutional pay or stay sentencing practices of local courts that created virtual debtors prisons. Earlier in the year, he launched a class action lawsuit against unconstitutional bail practices in Detroit. He's been recognized as a pioneer in protecting the rights of medical marijuana patients. He represented a class of school children seeking special education services in the wake of the Flint water crisis and is part of the legal team representing Amy Stevenson, you'll hear more about tonight, a transgender woman whose employment discrimination case will be argued before the Supreme Court this October.

Dan is a former student of mine, he graduated with highest honors from Swarthmore College in 2002, with a major in Philosophy and a minor in Political Science and a concentration in public policy which no longer exists. He has a law degree from Yale Law School and prior to joining the ACLU, he was a Law clerk for U.S. District Judge Myron H. Thompson in Montgomery, Ala., and Judge Robert D. Sack of the U.S. Court of Appeals for the second circuit in New York. He has worked for the NAACP legal defense, an education fund, the Civil Rights division of the U.S. Department of Justice, and he has been with the public defender service for the District of Columbia.

I'd like to thank the department of Political Science, the President's office, and the Lang Center for Civic and social responsibility for the generous support of this lecture and please help me welcome Dan Korobkin back to school [crosstalk 00:09:53].

Daniel Korobkin: Thank you very much, Carol and thank you very much to Keith Reeves from the Political Science Department and the President's Office and Provost here. I'm so excited to be back and to be able to talk to you on Constitution Day, so happy Constitution Day everybody.

Let's see which one it is. There we go. All right.

So what is this talk about? The Civil Rights movement for LGBTQ equality has made tremendous advances in recent years. A new threat though, has emerged to this movement. It's the claim by some individuals and organizations that their religious objections give rise to a Constitutional right to discriminate. This clash of values is going to be in front of the Supreme Court in the near future, it's going to dominate a lot of our Constitutional debates for some time to come, and I see as one of the great threats to civil rights and civil liberties over the long term. But I don't think it's always a black and white and simple issue and so that's why it's a perfect topic for Constitution Day talk.

This is Amy Stevens. She is our client, one of my clients at the ACLU of Michigan. Amy Stevens was by all accounts an exemplary employee at a funeral home in Metro Detroit. She was the Director of the funeral home, not the owner, but the Director. And the funeral home, for what it's worth, was not, is not a religious institution. They serve people of all faiths when their loved ones pass away, including people of no faith. So it's not a church, right?

Amy told her employer after being diagnosed with gender dysphoria and beginning treatment for this condition, that she's transgender and part of her treatment will be that should would take a short leave of absence from work, and when she comes back she will be presenting as her true self, Amy Stevens. Her employer said, you will not actually be returning after your leave of absence. We have no further need for your services, and she was fired.

As professor Nackenoff mentioned, the EEOC, the Equal Employment Opportunity Commission took Amy's case... we brought Amy's case to the EEOC and the EEOC took Amy's case as the first EEOC lawsuit on behalf of a transgender individual alleging employment discrimination in this country. And the funeral home... what happens when you file... when the EEOC begins a lawsuit is that the employer that is being accused of discrimination then responds and says what their response was.

And so, number one, they didn't challenge the basic fact of the case which was that they fired her for being transgender, right? They didn't say, "Oh, she was a terrible employee." It was... No. They fired for being transgender. They then said, "You know, we're really shocked by your lawsuit, we actually don't think that there's anything illegal about firing someone for being transgender. We know if we fire someone based on their race, or their religion, or their gender, that that is illegal but we don't think this is." They didn't mention religion, interestingly, at first.

Then the case went on for about 6 months or so and then a organization called the Alliance Defending Freedom, which is sort of the anti-ACLU got involved. And their stated mission is to protect religious liberty, although interestingly, they seem to only be concerned with the religious liberty of Christians and they came into this case. And amazingly, instantly almost, just after the ADF took on this case as the lawyer for the funeral home, suddenly the funeral homes owner announced that he is actually very, very religious and that the real reason why he fired Amy Stevens was because he believed that it was against his religion, his faith to continue to employ her. And he testified, we had a deposition, and he testified that his belief is that God creates you as a man or a woman and you don't get to mess around with that and therefore, when Amy decided that she... and of course he didn't use the female pronouns or her name, but when Amy decided that she was going to transition, that that was a violation of God's commands and that's why he wanted her out.

And a federal judge ruled... they bought that. The federal judge bought that record. The federal judge ruled that actually firing Amy was generally speaking, employment discrimination in violation of the Civil Rights Act of 1964. But, he said, but the funeral home was exempt because the owners religious freedom would be burdened if he couldn't fire Amy. And so the judge dismissed the federal lawsuit that the EEOC and the ACLU brought, and the case was over.

There have been appeals since then. The case was revived by the US Court of Appeals for the 6th circuit where we won unanimously, but then the worst thing that could happen when you win a great decision in the US Court of Appeals for the 6th circuit or any court of appeals, then the US Supreme Court said, "Actually, we're interested in this case too." And so they granted cert, they decided they would take the case, and that case will be heard on October 8th.

Now interestingly, because of some twists and turns in the case, this whole religious defense, this religious freedom defense is not actually going to be argued in the US Supreme Court case. And so that particular issue is being punted off... it's being kicked down the road and we'll see that... we'll inevitably see that return. But this is certainly going to be lurking in the background, right? This idea that because a employers religious faith, they're exempt from the law that seems to apply to everyone else.

The other big case that brought this up, and this one you probably more likely have heard of, is the Masterpiece Cakeshop case. And show of hands, is this familiar at all? Yeah. Okay. Right.

So this guy, this is Jack Phillips, he's the owner of Masterpiece Cakeshop. He's a baker, although he calls himself a cake artist. Sort of like, when you go to Subway, you've got sandwich artists. And Jack... so a gay couple wanted a... Charlie Craig and David Mullins, a gay couple getting married in Colorado came in to buy a cake from Masterpiece Cakeshop and Phillips refused to sell them a cake. And I'm sure you guys know this by now, on supposedly religious grounds. So the case went to the US Supreme Court, and Justice Anthony Kennedy who wrote the decision confirming that same sex marriage was a constitutional right, he wrote... this is what he wrote:

"The case presents difficult questions. As to the proper reconciliation of at least two principles. The first is the authority of the state and its governmental entities to protect the rights and dignity of gay persons who face discrimination when they seek goods or services. The second, is the right of all persons to exercise fundamental freedoms under the 1st Amendment."

So even Anthony Kennedy, the Justice perhaps most famous on the Supreme Court for advancing LGBT civil rights is saying that there are these two principles that have to be balanced here.

So what is it that we're talking about? I use the term religious refusals. What is a religious refusal? It's when an individual or organization acting out of a religious belief refuses to do something that they would otherwise be required to do. Unquestionably, they would otherwise be required to do that. Based on the assertion that doing so would violate their religious beliefs. And then, they seek legal protection or recognition or support for that refusal. Right, so this isn't civil disobedience, right? Sometimes people say well, "This was unjust, so I'm going to trespass onto the White House lawn, and I know I'll get arrested but I'll just face the punishment. I'm asserting my disagreement with the law." That's not this. These individuals who are engaged in religious refusals are not saying, "I'm violating the law because I don't like it, but I'll take whatever punishment comes." They're saying they actually think that because of their religious belief, that they don't actually have to comply with whatever law applies to everyone else. That they seek a recognition under the law, that this exemption applies to them, that this refusal would be okay.

So this could be something that someone's required to do by law. So in this case with Masterpiece Cakeshop, there was a Civil Rights law in Colorado for public accommodations, that say if you go into a business that's open for the public, you can't be discriminated against based on race, based on religion, based on sex, or based on sexual orientation. So that is a law that applies to everyone but the religious refusal was saying, "We don't want to be required to comply with that."

It could also be an employer. Talk about that in a minute. Or it could be a contract or agreement that someone wants to violate based on their religious beliefs.

Although I said a new threat has emerged to LGBT rights and Civil Rights, lately, in fact this idea of a religious refusal has a lot of history. Back in the 1960's during the Civil Rights Movement, there's a famous Piggy Park case. Piggy Park is a name of a business in South Carolina, it was a restaurant. The restaurant owner said that his religious beliefs allowed him to refuse to serve black customers because under his beliefs at the time, he felt like the integration of the races was against his religion, against God's commands and so he didn't want to comply with the 1964 Civil Rights Act that required public accommodations to serve everyone regardless of race.

So the Supreme Court just kind of quietly shook its head at that and said, "Of course not, you have to comply." And by the way, they didn't question the sincerity of his religious beliefs. I don't know whether they were real or not, but they didn't question them. They just said, doesn't matter, this is the Civil Rights law that applies to everyone. You open up a business, it's open to the public, you have to comply.

Another famous case... anyone ever heard of this Bob Jones University case? It's come up? Yeah. So Bob Jones University is one of these famous Universities, this... and a little behind the times. In the 1980's they had a ban on interracial relationships among their student body. They said you cannot date anyone of another race. And the United States government normally provides income tax exemptions to all public Universities. But one condition of the tax exemption is that you not discriminate based on race. And so the United States wanted to deny Bob Jones University their tax exemption because they had this ridiculously racist policy and it went to the US Supreme Court and again, Supreme Court quietly shook its head and said, no just because this is your religious, supposedly your religious belief, it really doesn't matter. There's no exemption. And yet, here we are with another Civil Rights movement, this time for LGTBQ individuals. And yet courts are giving way more credence to this religious refusal idea. Society is giving way more credence to this religious refusal idea.

So I just explained that Amy Stevens... oh by the way, I didn't... in the Masterpiece Cakeshop case, the Supreme Court, like with the Amy Stevens case, they kind of punted this issue. They decided not to decide this issue. So it's still out there waiting to be decided... this idea whether a religious refusal would be recognized in a bakery type of situation.

But like I said, in Amy Stevens case, when we were in the lower court, the federal judge agreed with the funeral home and said, even though you're discriminating against Amy in violation of Title VII, your religious beliefs get you off the hook. We have a case in Michigan where adoption agencies and foster care agencies that are publicly funded, they receive public money from the state of Michigan, and the state of Michigan said to them, if you want public money to help the state place children in foster homes and with adoptive families, you have to agree to provide your services without discriminating based on race, religion, sexual orientation, and gender. And the adoption and foster care agencies which are sometimes faith based, some of them have said, no problem. Others have sued the state of Michigan and said, we don't want to comply. We think we're entitled to tax payer dollars and we're entitled to use those tax payer dollars to discriminate against people based on their sexual orientation. And so that's a real lawsuit that I'm on right now, it's going to be ruled on soon.

We have another Masterpiece Cakeshop type of case coming up to the US Supreme Court, this one involves a flower shop. They don't get that creative, right? It's like we went from the wedding cake to the flower shop, it's another wedding case. And the flower shop people say, you know, we feel strongly about the religious component of our flowers or whatever and we don't want to comply. We don't want to comply and they refused. And that case is going up to the Supreme Court.

The Trump administration is allowing federally funded homeless shelters to turn away transgender youth who are homeless and they're still giving those homeless shelters federal tax payer dollars to discriminate. And the US Department of Health and Human Services under the Trump administration... I always knew of the office called the Office for Civil Rights in the HHS and that's where you go if you're being discriminated against by a recipient of federal funding. The Trump administration has created a new office called the Office of Religious Freedom. Where their job is to help recipients of federal funds discriminate.

What's going on here, legally? It's Constitution day so you're going to get a little legal lesson, here. Two things...

My updates are ready to install. Huh. I think we want that. Picked a great time. All right, it's not going away is it? All right.

All right, ignore that.

Carol Nackenoff: Just hit "Later".

Daniel Korobkin: Yeah, I can't find it on the screen though, so. We're going to ignore that. Ignore that.

All right so, Employment Division vs. Smith. US Supreme Court case back in 1990. I don't know if there are any Con Law seminar veterans here, but you probably read this case. This case decides that the 1st Amendment, which is the Amendment that's supposed to protect religious freedom, right? Does not actually require a religious exemption to a facially neutral generally applicable law. What's a facially neutral generally applicable law? It's a law that has nothing to do with religion, and it just applies to everybody. So the particular situation in Employment Division vs. Smith was that a group of Native Americans who for religious reasons ingest Peyote, which is a drug, were fired from their job and claimed unemployment benefits, but the state of Oregon did not want to give them unemployment benefits because they were drug users. And they said, well this is our religious practice so we should have exemption from this. And the US Supreme Court said, no sorry, but this is a generally applicable law in place to everybody, it doesn't discriminate specifically against your religion and so you don't get a religious exemption from this. So no religious refusals is what the Supreme Court ruled in Employment Division vs. Smith.

Then congress comes and flips that around. In the Religious Freedom Restoration Act of 1993, they said, okay we don't like that decision and if a federal law has a substantial burden on religious exercise, the law can be sustained only if it is narrowly tailored to serve a compelling government interest. So those of you who have taken Com Law, you know this narrowly tailored to serve a compelling government interest is called the strict scrutiny test and it usually means if you find yourself into strict scrutiny land, you're going to lose. And so what this means is that religious refusals are favored under this law. Because if a federal law has a burden on your religious practice, even if it's a neutral law, strict scrutiny is in vote and that law is unconstitutional as applied to you and your religious practice. And so under RFRA, the Religious Freedom Restoration Act, religious refusals have made their way into federal law.

So the RFRA standard, the second standard here has a number of problems. First, it creates a license to discriminate. I think we see that with the Amy Stevens case, with the Masterpiece Cakeshop case... and that I think is problematic because to the extent we think that discrimination is wrong, regardless of religion, the law is not supporting those anti-discrimination values. That's kind of the easy reason why the Religious Freedom Restoration Act is a little bit problematic.

The second reason is, I actually think, and I don't have empirical evidence for this, but I'm sure someone does and it could make a good research project for some of you. I actually think that a standard like this will in the long run tend to actually distort religious belief itself, right? If someone is already implying to discriminate based on how they were raised, or the background that they come from, or whatever... and then the law says that that's legal, only if it's based on religious belief. Call me cynical, but I think someone is more likely to actually form a religious belief to justify the discrimination. And so that's actually really problematic from a Constitutional standpoint because under the 1st Amendment our government is actually supposed to be neutral when it comes to religion and if the government is putting its hand on the scales and actually encouraging people to develop harmful religious beliefs or discriminatory religious beliefs, I think that that's actually distorting actual religious practice over the long run.

And even just to be more generous about framing that for a second, right. If someone is just fearful of the unknown, right? Or they're unsure what to think, I think they're less likely to embrace tolerance when the law promotes the association of intolerance with a religious tradition that they may already have come to know and trust, right? And so I think it's just kind of a nicer way of saying that peoples religious beliefs are going to be distorted by this.

And then finally, another reason why this second rule is problematic is because it distracts us from religious refusals that we ought to support. I think there are religious refusals out there that are actually the kinds of religious refusals that are the good kind, that we ought to be, as a tolerant society, as a multicultural society, embracing. And we'll get to those in a second. But I think it's important to point out that this Religious Freedom Restoration Act was actually embraced by... is a bipartisan legislation, it was passed by overwhelming majorities, and progressives at the time, back in 1993, including the ACLU for what it's worth, supported this. Because the idea at that time was that this Employment Division vs. Smith case that said Native Americans who ingest a drug as part of their religious rituals are banned from unemployment insurance... that seemed like the wrong decision. And that there ought to be some religious exemptions out there.

So an example of this, this is another one of my clients or former clients, Lieutenant Maysaa Ouza is from Michigan she's an attorney, she was admitted to the Air Force JAG Corps. And the JAG Corps is where they have attorneys who work for the military. And even if you're an attorney, and this is why of course I would never join the military, you have to go through basic training. And she was ordered to remove her hijab for basic training, which is the religious headscarf that many Muslim women wear. And we argued successfully that an exemption for the order banning the hijab was required by the Religious Freedom Restoration Act and she became the first Air Force Officer to wear a hijab and there she is.

There have been many more situations like this. There's a Sikh ROTC officer who was ordered to shave his beard and remove his turban, the ACLU filed a lawsuit on his behalf again winning a religious exemption under the Religious Freedom Restoration Act. There's a famous case from a few years ago called Holt, H-O-L-T vs. Hobbs, the US Supreme Court ruled that Muslim prisoners in federal prison are entitled to an exemption from a rule against prisoners growing beards. Growing beards for many Muslim men is a religious practice and the US Supreme Court ruled in favor of the prisoners. By the way, if the Supreme Court ever rules in favor of prisoners you've got to believe there might be something else going on. And here there was, there was this idea that there might be a religious exemption to a generally applicable law against prisoners wearing beards.

And then I've represented individuals who are Sikh, and they have a... Sikh, S-I-K-H, right? One tradition in the Sikh community is to carry what's called a Kirpan, which is a ceremonial blade or dagger. And it was a public University in Michigan that said, we don't allow any weapons on campus and so anyone who is carrying this dagger would be banned from campus. We represented that individual and won our case based on the religious exemption that's required under RFRA. So there are these religious exemptions that we favor, and yet we're also trying to prevent the religious exemptions that wind up causing Amy Stevens to lose her job, wind up having couples appear at cake shops and not be able to be served.

So what's the solution here? How do we balance these two issues? Let me just say, and I don't know if everyone is on board with this. But let me just say that I think we ought to begin with the premise, as a general matter, that we're going to take religious liberty claims seriously. Doesn't mean that we have to agree with them for sure. But I think that we begin with the premise that we take religious liberty claims seriously. Sometimes that's actually kind of hard to do, like in the Amy Stevens case where the funeral director suddenly became religious after the religious organization came to his defense. But I think there are situations where it makes sense to take religious liberty claims seriously.

And why should we do this? For no other reason I think that religion is a core Constitutional value in our tradition, in our history. The US Supreme Court certainly embraces religion, at least, certain religions as being core to our principles. And I work for an organization where the mission includes defending all civil liberties including religious liberty. And so I think we can all agree that even if it's not right in our heart and not something that we wake up thinking about every day, that there's actually a religious liberty claim that many Americans have in one form or another, that we have to say, okay, let's take this seriously, let's see if we can work with this.

But so far the problem is, is that we only have these two models, right? Neither of which is satisfying, right? Let's go back to these. The first model is the Employment Division vs. Smith model, no religious refusals ever, right? So Lieutenant Ouza, the Muslim JAG Air Force Officer, she would be out. She wouldn't be able to join the Air Force. And then, on the other side we have this problem which I've already talked about, the Religious Freedom Restoration Act standard, this idea that if you just say, "It's my religion", suddenly strict scrutiny is triggered and you almost automatically get a religious refusal out of it. Neither of these models seem to be the right one, right?

So what neither model accounts for, at least not explicitly, is the effect that the religious refusal has on the rights and the interests of other people. So I don't know if we have... I was a Philosophy major, I don't know if we have any Philosophy students in the room but John Stuart Mill's famous harm principle, right? Does anyone... do you want to... are we still teaching John Stuart Mill? Right, his idea was that the restriction of liberty is justified only if necessary to prevent harm to others. Right? You can restrict someones liberty only if it's necessary to do so to protect, to prevent harm to others. So in our case, let's use religious liberty as the liberty that's be restricted when you're complying with a, say anti-discrimination law. Right? So under the harm principle, when should religious refusals be allowed? Here, they should be. So anyone who's going to be harmed by allowing Lieutenant Ouza to keep her hijab for basic training. Basically, nobody. No ones rights are going to be trampled on.

So here is an example of where it doesn't make sense to restrict Lieutenant Ouza's religious liberty, it makes sense to allow the religious exemption. But by contrast, right, going back to Amy Steven's case, religious refusals that impact the rights of employees, of customers, of hospital patients, et cetera... do cause harm. Amy Stevens was out of a job. The couple that went into the Masterpiece Cakeshop was turned away from a business that's supposed to be open to the public.

There are examples of this outside the LGBTQ context, for example, in the healthcare industry when employers or hospitals or doctors or pharmacists refuse to, based on their religion, refuse to provide medical or healthcare services or coverage that they would otherwise be required by law to provide. We have a number of cases like this in Michigan, it's pretty awful. And in these cases, right, the harm principle does not favor a religious refusal. Even if the law would actually violate a religious belief, because again remember I think that we should at least take seriously the claim that there are religious beliefs here, even if it does, restricting that religious liberty, even if you want to call it a religious liberty that's being restricted, imposing that restriction is justified by the need to protect others from harm.

Unfortunately, you don't see that principle in play in the legal doctrines that are applied in this situation. So my proposal, not that anyone's ever going to agree with it, or sure play it out, great... that anyone's going ever enact it, but my proposal is we have a new legal test and incorporates the harm principle into the law of religious refusals. So instead of creating a presumption that you should be in favor of religious refusals in all cases, or against religious refusals in all cases.

The law should begin, I think, by asking a question whether the religious refusal would deprive another individual of a right, an interest, or expectation under the law, that they are otherwise entitled to under the law. And I think you could basically come up with two answers to this, right? If no, if the religious refusal would not deprive anyone of any right that they have, you keep the presumption in favor of religious refusals. You use the Religious Freedom Restoration Act standard and that person probably gets a religious exemption like Lieutenant Ouza did in the JAG Air Force. But if the answer is yes, if you're an Amy Stevens, Masterpiece Cakeshop type situation, and someones actually being denied a right or a legal interest or expectation, that they're entitled to under the law, then the religious refusal ought to be disfavored. And the presumption ought to be that that person does not get to use their religion no matter how heartfelt it is, to discriminate. And so that would be the test under my perfect world or even a slightly better world than what we have now.

So that's my idea and unfortunately we're living in a time where there are not five members of the US Supreme Court that are ready to go for that. But there have been certain laws actually, there's been certain bills introduced to Congress that attempt to essentially reify this type of idea. They don't do this fancy flow chart but what they do is they actually list a bunch of federal statutes like the Civil Rights Act of 1964, and Americans with Disabilities Act, and a bunch of statutes that are already providing these legal rights and interests and they say, if this is the law that's being applied to the person who says they have a religious belief, then the Religious Freedom Restoration Act just doesn't apply to them at all and they're back in the Employment Division vs. Smith category. So it's kind of a crude way of enacting this type of theory.

So we'll see what happens. Like I said, in the funeral home case that's going to the US Supreme Court next month, we're not expecting a real ruling on this issue. It's actually going to apply much more to just the basic question whether Title VII applies to discrimination based on transgender, based on gender identity. And like I said, the wedding cake case got kicked down the road. They didn't decide this issue there but there is this flower case coming up so that might be a place where some of these issues get discussed.

So that's it, and happy to talk more and see what you guys think.

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