Part III | Expanded Analysis

Category C | Discrimination

Topic 13 | Conviction is not discrimination

Adhering to one’s religious convictions usually does not involve unlawful discrimination against others. One of the most frequent criticisms of religious freedom is that it is a claim for the right to discriminate against others. This is usually a distortion of religious belief and practice and often rests on a misguided oversimplification about what constitutes unlawful discrimination.

Religious qualifications vs. discriminatory animus  

Religious qualifications are frequently employed to assess an individual’s standing within a religious community, often for purposes of conferring rights of association or other benefits. It is a distortion to view a religious association’s evaluative practices as discriminatory, such as placing qualifications on church membership, ordination, employment, or marriage in the church or in accordance with religious law.

In the United States, Title VII of the Civil Rights Act of 1964 prohibits both public and private employers from discriminating against employees, or in their hiring decisions, on the basis of race, color, religion, sex, sexuality, gender identity, and national origin.³³⁰ Religious organizations generally qualify as “employers” under the Act.³³¹ Section 702 of the Act, however, carves out an exemption for religious organizations, stating that the Act’s provisions “shall not apply . . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [organization] of its activities.”³³²

Before a 1972 amendment, the word religious appeared before the word activities. The omission of religious has left courts to determine whether and when religious organizations can use otherwise-prohibited qualifications in their hiring practices.³³³ The U.S. Supreme Court has held that Section 702’s religious exemption is constitutional, as applied to a religious organization’s employment decisions for its secular nonprofit activities.³³⁴

In 2012, the U.S. Supreme Court affirmed a doctrine known as the “ministerial exception” in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission.³³⁵ This doctrine provides that religious institutions are insulated from government interference in the hiring of “ministers” and in administrating internal affairs “essential” to their central missions.³³⁶ The Court in Hosanna-Tabor stated,

"The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments."

This rationale illustrates an important distinction between religious qualifications used to evaluate membership status or good standing within a religious community and animus—the bare desire to harm a politically unpopular group. Critics often conflate the two motivations,³³⁷ but doing so is a mischaracterization.

Religious qualifications are based on the doctrines, beliefs, and customs of a particular faith group; they are intended to maintain the integrity of, and adherence to, the teachings of that particular religion. Individuals who choose to be part of a religious community voluntarily accept its qualifications. Membership status is thus conferred on anyone willing to follow the group’s teachings and practices. Religious organizations use adherence to these standards as a proxy for assessing an individual’s faith and, relatedly, the likelihood that the individual would excel in a position as an employed representative or leader. As the U.S. Supreme Court explained in Hosanna-Tabor, such employment decisions rely on the organization’s right to determine who may personify and convey its teachings.

Qualifying characteristics differ sharply from discriminatory animus. Though the U.S. Supreme Court’s understanding of animus has varied over time, the emerging definition refers to a strong and often irrational hostility or bias directed at a particular group, due to immutable characteristics such as race, gender, or sexual orientation.³³⁸ Thus, the key distinction between religious qualifications and animus is the purpose or intent. Religious qualifications are motivated by a legitimate doctrinal purpose, based on members’ voluntary association and adherence to group standards, and are a lawful means of overseeing internal administrative decisions. In contrast, animus is motivated by discriminatory intent, based on immutable characteristics rather than voluntary adherence to certain beliefs, and is unlawful.

It is important to note that neither religion nor religious freedom provides a rationale for violating the human rights of others. But human rights instruments place obligations to protect human rights primarily on states, and those rights are usually held by individuals against their state, not against other individuals or non-state actors. Indeed, ideological or religious associations that utilize specific criteria for distinguishing between members or nonmembers of the association may engage in conduct that seems discriminatory. So while the state may be obliged to protect the antisemitic speech of the Ku Klux Klan, the local synagogue is not obliged to provide them a platform.

Though both religious qualifications and animus may serve to exclude certain individuals from associating with a group or receiving a particular benefit, it is erroneous to conflate the two practices.

Traditional religious practices vs. discriminatory animus  

Many religious traditions and doctrines have been established over centuries and thus have deep historical roots that predate the development of modern human rights. Perceived conflicts between traditional religious teachings and modern-day human rights may arise, especially when religious beliefs or practices are used to exclude certain individuals or groups. However, an important distinction must be drawn between adherence to traditional religious doctrines and discriminatory animus. These two interests are best understood from different perspectives: on the one hand, “religion as viewed from the committed perspective of the []adherent,” and on the other, “the privileges and disadvantages that accompany the membership of a religious group as assessed from the non-committal” or public viewpoint.³³⁹

Religion is a complex “intersubjective phenomenon,”³⁴⁰ meaning that its existence is dependent on a group’s shared acceptance of certain doctrines, teachings, and norms. To the outsider, or uncommitted public, the group’s shared ideologies are of little importance; however, to religious adherents, their shared ideologies are the very basis of their association. Individuals’ adherence to religious traditions, then, are often a manifestation of their deeply held beliefs, values, and spiritual convictions. From the perspective of a non-adherent, it may be difficult to understand why religious organizations seemingly confer benefits “discriminately,” only on their own members. However, branding adherence to tradition as discrimination can oversimplify the complex reality that religious traditions lose their essential intersubjective meaning when stretched or broadened to include everyone, potentially diluting the unique aspects of each religious community.

The conferring of benefits on their members (e.g., the right to marry within a religious covenant, fellowship and sense of community, or expressive goods and services that promote a shared ideological belief) reflects the essential right of religious communities to self-determine their beliefs, practices, and standards of membership. In many countries, including the United States, this right of self-determination is legally protected for religious communities.³⁴¹ A mosque that refuses to perform a Catholic wedding is generally not considered to discriminate unlawfully on the basis of religion, for example. Rather, in most countries, that right to refuse reflects the right of Islamic people to live their intersubjective faith.

Especially with respect to rights that are more recently recognized, or that run contrary to traditional or historical understandings, it is anachronistic to accuse religious associations of discrimination when they uphold their traditional views. For example, when the Anglican Church in Africa upholds traditional morality as it was taught to them by missionaries from England they should not be accused of discrimination, even if the Anglican Church in England has changed its views on basic moral issues such as ordination of women, homosexual acts, or gay marriage.

As societies evolve, the tension between religious freedom and emerging human rights, such as expanding antidiscrimination principles, can create challenges. When balancing these interests, it is crucial to recognize that adherence to religious tradition is not discriminatory but rather an expression of deeply held beliefs.

Creative integrity and compelled speech vs. discriminatory animus

Some small business owners have asserted the right to refuse to provide expressive services and goods that they consider to contravene their religious beliefs. They generally claim the right to refuse under laws that protect the right to freedom of religious exercise or the right to freedom of speech.

In 2023, the U.S. Supreme Court considered 303 Creative LLC v. Elenis,³⁴² one in a series of U.S. cases that explored the relationship between public accommodation laws and providers of goods and services who refused to convey messages through their own creative expression that violated their religious beliefs.³⁴³

Lorie Smith, a graphic designer and sole owner of 303 Creative LLC, sued the state of Colorado, seeking an injunction to prevent the state from enforcing the Colorado Anti-Discrimination Act (CADA) against her. Smith alleged that she intended to expand her business to include services for couples seeking customized websites for their weddings. Her websites were to feature original graphic artwork, customized designs, text, and video to convey couples’ love stories and wedding information to friends and families. Smith was concerned, however, that the Colorado Civil Rights Commission would require her to provide her website design services to same-sex couples, in violation of her sincerely held religious belief that “marriage should be reserved to unions between one man and one woman.”³⁴⁴

Smith stated that she was willing to work with and produce custom graphics for all clients, regardless of race, creed, sexual orientation, and gender. However, she refused to create content that “contradict[ed] biblical truth.”³⁴⁵ Smith posited that her web designs were expressive speech and should be protected by the U.S. Constitution’s First Amendment, under the Free Speech Clause.³⁴⁶ The U.S. District Court for the District of Colorado refused to grant Smith’s injunction. The U.S. Court of Appeals for the Tenth Circuit affirmed, and the Supreme Court granted certiorari.

CADA prohibits all places of “public accommodation” from denying “the full and equal enjoyment of the goods, services, facilities, privileges, [or] advantages” to any patron because of “disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry.”³⁴⁷ The law defines “public accommodation” broadly, including almost every business in the state that is public facing.³⁴⁸ Possible penalties for violating the Act include compulsory participation in “remedial training,” completion of regular compliance reports, and payment of monetary fines.³⁴⁹

The U.S. Supreme Court determined that Smith’s web-design service qualified as “pure speech” and thus was entitled to constitutional protection under the First Amendment. The Court reasoned that the designer’s original images, words, and symbols combined to form a unique expression of ideas.³⁵⁰ The Court further held that the wedding websites were, in fact, a product of the designer’s speech. Even though the websites incorporated the stories and speech of client-couples, Smith “[did] not forfeit constitutional protection simply by combining multifarious voices.”³⁵¹

The Court then addressed the public accommodation law directly—postulating whether a state can lawfully force someone who provides a public accommodation in the form of expressive services to abandon her religious beliefs. The Court answered no, stating, “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”³⁵² Though the Court reaffirmed that U.S. state governments have a compelling interest in “eliminating discrimination in places of public accommodation,”³⁵³ the Court acknowledged that “no public accommodations law is immune from the demands of the Constitution.”³⁵⁴

303 Creative marks a clear limitation on otherwise expansive U.S. common law relative to public accommodations: state governments cannot employ public accommodation statutes to compel or alter speech protected by the First Amendment’s Free Speech Clause.

In its rationale, the U.S. Supreme Court drew an important distinction between (1) the refusal to sell off-the-shelf products (e.g., generic premade cakes or form-fill wedding websites) to customers on the basis of a protected characteristic and (2) the refusal to create a custom product that conveys a particularized message opposed to the creator’s religious beliefs. The former is a violation of antidiscrimination and public accommodation laws. The latter, the Court held, is a protected form of free speech.

303 Creative is illustrative of the fact that a large percentage of small businesses exercise judgment in what services or goods they provide to which customers.³⁵⁵ Viewing the ability to freely exercise that judgment as discriminatory animus is, generally speaking, a distortion, particularly where that judgment is based in religious belief and the products/services offered are a form of artistic expression.

Conclusion  

A frequent criticism of religious freedom is that it is a claim for the right to discriminate. However, this is usually a distortion of religious doctrine and practice, based on oversimplifying and undervaluing aspects of religious exercise, including religious qualifications, religious traditions, and freedom of expressive conduct. While each of these aspects of religious exercise may serve to exclude certain individuals from receiving a particular benefit, they are not grounded in discriminatory animus. Rather, they are grounded in human and constitutional rights to hold and exercise religious convictions—and they have been legally recognized as such.

References

330. Civil Rights Act of 1964, tit. VII, 42 U.S.C. §§ 2000e to 2000e-17 (2024); see also Bostock v. Clayton County, 590 U.S. 644 (2020) (interpreting Title VII’s prohibition on employment discrimination based on “sex” to encompass sexual orientation and gender identity).

331. 42 U.S.C. § 2000e(b) (“The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service . . . , or (2) a bona fide private membership club ”).

332. 42 U.S.C. § 2000e-1.

333. See Bruce N. Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 COLUMBIA LAW REVIEW 1514, 1534 (1979).

334. Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335–36 (1987).

335. Hosanna Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, 565 U.S. 171, 188 (2012).

336. See Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. 732, 753–54 (2020) (outlining factors that courts consider in determining if an employee qualifies as a “minister” for purposes of the exception, concluding that “[w]hat matters, at bottom, is what an employee does”).

337. Douglas NeJaime & Reva Siegel, Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop, 128 YALE LAW JOURNAL FORUM 201, 214 (2018).

338. Susannah W. Pollvogt, Unconstitutional Animus, 81 FORDHAM LAW REVIEW 887, 926 (2012).

339. Tarunabh Khaitan & Jane Calderwood Norton, The Right to Freedom of Religion and the Right Against Religious Discrimination: Theoretical Distinctions, 17 ICON: INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 1125, 1127 (2020).

340. Id. at 1128.

341. See W. COLE DURHAM JR., WILLIAM W. BASSETT, MARK A. GOLDFEDER & ROBERT T. SMITH, RELIGIOUS ORGANIZATIONS AND THE LAW, at ch. 5 (The Church Autonomy Doctrine and the Independence of Religious Organizations) Westlaw RELORGS (updated Dec. 2023).

342. 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).

343. See, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. 617, 634 (2018); Telescope Media Group v. Lucero, 936 F.3d 740, 752 (8th Cir. 2019); Chelsey Nelson Photography LLC v. Louisville/Jefferson County Metro Government, 479 F. Supp. 3d 543, 558 & n.122 (W.D. Ky. 2020); Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890, 896, 926 (Ariz. 2019); Elane Photography, LLC v. Willock, 309 P.3d 53, 58–60 (N.M. 2013), cert. denied, 572 U.S. 1046 (2014) (mem.); State v. Arlene’s Flowers, Inc., 441 P.3d 1203, 1237 (Wash. 2019) (en banc).

344. 303 Creative, 600 U.S. at 580.

345. Id. at 582.

346. U.S. CONSTITUTION amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”)

347. COLO. REV. STAT. §24-34-601(1) (2024) (“gender identity” and “gender expression” were added to the statute in 2024).

348. Id.

349. 303 Creative, 600 U.S. at 589.

350. Id. at 588.

351. Id. (quoting Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995) (internal quotation marks omitted)).

352. Id. at 592.; U.S. CONSTITUTION art. VI, cl. 2.

353. 303 Creative, 600 U.S. at 590 (citing Roberts v. United States Jaycees, 498 U.S. 609, 628 (1984)).

354. Id. at 592.

355. For example, some divorce lawyers only represent women, which might be characterized as discrimination against men. Some hair salons or exercise clubs only serve women (which might be characterized as sex discrimination), or women of a particular ethnic background (which could be construed as sex and race discrimination). Some independent journalists publish exclusively with publications reflecting particular political orientations—discriminating against publications with other political viewpoints. Some wedding planners focus on weddings for a particular religious community, which could be construed as religious discrimination. Some party planners specialize in birthdays for children, which could be considered age discrimination. Many cake artists would refuse a commission for a “Proud Boys” cake, which could be considered unlawful racial discrimination (but likely would not be, by most people).

However, when the desired message is related to LGBTQ issues, a refusal of service is much more likely to be viewed as unlawful discrimination (on the basis of sexual orientation or gender identity). In contrast to many other situations, an expectation that a business must serve “all comers” is often applied in the context of relatively “newly minted” rights. This can be due to the zeitgeist surrounding a newly recognized right or to government officials taking little note of discrimination of which they approve while taking a hard stand against discrimination of which they disapprove. Whatever the reason, the inconsistent use of antidiscrimination laws can easily become its own form of discrimination. For example, the selective prosecution of a Christian cake baker who refuses to decorate a cake to celebrate a same-sex wedding, while allowing other bakers to refuse commissions on a wide variety of grounds, may amount to discrimination against the religious baker.