Playing Outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII

68 Am. U. L. Rev. 569 (2018).

* Senior Articles Editor, American University Law Review, Volume 68; J.D. Candidate, May 2019, American University Washington College of Law; B.A., Psychology, Honors, 2013, University of South Florida. I would like to thank my faculty advisor, Stephen Wermiel, for his invaluable expertise and guidance. I would also like to extend my sincerest appreciation to the American University Law Review Editorial Board, especially Kymberly Kester, who spent countless hours discussing religious exercise with me. Finally, I would like to thank my family and friends for their continued support and inspiration.

As the nation is grappling with rancorous identity wars, some are looking to the Religious Freedom Restoration Act (RFRA) as both a shield and sword. What was once a permissible federal religious accommodation has become an impermissible religious endorsement. This Comment argues that the Supreme Court’s recent expansion of RFRA, as applied to Title VII of the 1964 Civil Rights Act, violates the Establishment Clause. RFRA not only provides employers immunity from Title VII, it allows employers to utilize the judiciary to coerce lesbian, gay, bisexual, transgender (LGBT) employees to conform to the employers’ religious beliefs. In providing employers religious exemptions from Title VII, the judiciary coerces religious conformance and endorses religion. However blurred the boundaries of the Establishment Clause are, it clearly prohibits such government action.

Introduction

You just returned from your honeymoon with your new wife. You are excited to get back to work, but when you arrive, you notice your name is no longer outside of your office and your key does not fit in the lock. You go to the Vice President to demand answers. He tells you that both his faith in God and the Christian Bible have taught him that marriage is between a man and a woman. He cannot, in accordance with his faith, let you, the closeted lesbian who has helped build this company, continue to be a part of his team. You are fired.

After a few days of shock, you file a charge with the Equal Employment Opportunity Commission (EEOC). You claim that the company unlawfully discriminated against you, and therefore violated Title VII of the 1964 Civil Rights Act. The EEOC investigates your case and finds reasonable cause to believe the company unlawfully discriminated against you. After months of investigating, the EEOC files a suit against the company. At trial, the company argues that requiring it to retain a homosexual employee violates its sincerely held religious beliefs. Under the Religious Freedom Restoration Act (RFRA),¹ the company should be exempt from Title VII’s prohibition on employment discrimination. At the end of the trial, the court holds that requiring the company to maintain you as an employee violates the company’s sincerely held religious beliefs. Further, because the EEOC failed to show that requiring the company maintain you as an employee is the least burdensome recourse, the company is exempt from Title VII. You lost.

While the scenario above is hypothetical, it is far from conjectural. RFRA prevents the government from substantially burdening a person’s religious exercise² unless the government can pass strict scrutiny by demonstrating: (i) it has a compelling interest in applying the law to the person, and (ii) it is using the least restrictive means of achieving that interest.³ Therefore, if a federal statute or regulation substantially burdens an individual’s religious exercise, even if unintentionally, the government must satisfy strict scrutiny or it must exempt the individual from the burdensome statute or regulation.⁴

In Burwell v. Hobby Lobby Stores, Inc.,⁵ the Supreme Court held that the judiciary is not capable of measuring the substantiality of the burden a government action has on religious exercise.⁶ Rather, courts can only inquire into whether the religious objector honestly believes that the government is substantially burdening his religious exercise.⁷ Further, the Court held that closely held, for-profit corporations are “person[s]” under RFRA, whose religious exercise RFRA therefore protects.⁸

The Hobby Lobby decision represents an extreme expansion of religious liberty. First, by deeming itself incompetent to decide whether the government substantially burdened religious exercise, the Court eliminated the threshold question used to determine whether strict scrutiny should be applied.⁹ So long as a person honestly believes the government is burdening his religious exercise, strict scrutiny must apply.¹⁰ Additionally, by expanding RFRA protections to corporations, the Court effectively provided exemptions from laws specifically designed to circumscribe corporate power and protect individuals from harmful corporate conduct.¹¹

This directly implicates Title VII of the 1964 Civil Rights Act,¹² which prohibits employers from taking adverse employment actions against employees because of their race, color, religion, sex, or national origin;¹³ and, is particularly relevant to claims of employment discrimination on the basis of sexual orientation and gender identity.¹⁴ Unlike race, lesbian, gay, bisexual, transgender (LGBT) status is seen as a choice by some judges,¹⁵ and even if it is not, the outward projection of this status is partially within control of the employee. Therefore, rather than requiring the employer to maintain a flamboyant LGBT employee, a less restrictive alternative is to require the employee to present in a more hetero-normative or cis-normative manner while at work.¹⁶

This Comment argues that applying RFRA, as construed by the Supreme Court, to Title VII violates the Establishment Clause.¹⁷ Part I reviews the evolution of religious accommodation under the Free Exercise Clause,¹⁸ the recent expansion of religious accommodation under RFRA, and the simultaneous expansion of LGBT protections.¹⁹ Additionally, Part I explores the inevitable clash between LGBT and religious rights as exemplified in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.²⁰ Finally, Part I explores how the Court has traversed the fine line between permissible religious accommodation under the Free Exercise Clause and impermissible religious endorsement under the Establishment Clause.²¹

Part II argues that applying RFRA, as construed by the Supreme Court, to Title VII’s prohibition on sex discrimination constitutes a government action that compels LGBT employees to conform to the religious ideology of their employer, and therefore violates the Establishment Clause.²² Additionally, Part II argues that RFRA accommodations from Title VII violate the fundamental principle of neutrality²³ and are therefore an impermissible endorsement.²⁴ To support these assertions, Part II analyzes the application of RFRA to Title VII by examining the Harris Funeral Homes decision.²⁵ This Comment concludes that the Establishment Clause provides a natural limit to the Court’s broad expansion of religious freedom under RFRA, and applying RFRA to Title VII exceeds this limitation.²⁶

I. Background

A. The Free Exercise Clause and Religious Accommodation

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”²⁷ Though the First Amendment specifically refers to Congress, it restricts all three branches, including the judiciary, from infringing on these rights.²⁸

[t]he amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly.

N.Y. Times Co. v. United States, 403 U.S. 713, 716 (1971) (Black, J., concurring); see also 1 Annals of Cong. 437 (Joseph Gales ed., 1834) (statement of Rep. Madison) (explaining that the purpose of favoring particular rights within the Constitution is to “limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode”). Thus, if any branch acts beyond its authority by burdening an individual’s religious exercise, that individual may seek exemption from the unjustified imposition.²⁹

The Free Exercise Clause protects only beliefs and practices that are religious, and that protection is not infallible. This Section explains what protections are afforded under the Free Exercise Clause. Section I.A.1 explores the Court’s rules for determining whether a belief or practice is religious. Section I.A.2 explains what restrictions on religious exercise are permissible under the Free Exercise Clause. This Section begins by delineating the Court’s incongruent Free Exercise Clause jurisprudence leading up to its seminal decision in Employment Division v. Smith,³⁰ where it held that the Free Exercise Clause does not require the government to provide religious accommodation from neutral, generally applicable laws.³¹ The Section concludes by clarifying what restrictions are permissible post-Smith.

1. Defining religious exercise

The Free Exercise Clause protects two rights: “the right to believe and profess whatever religious doctrine one desires” and the right to perform, or abstain from performing, physical acts engaged in for religious reasons.³² The right to believe is absolute, but the right to act is not.³³ Thus, the government may not compel an individual to subscribe to a particular religious tenet; however, in some circumstances the government may prohibit him from acting in accordance with the particular religious tenets to which he does subscribe.³⁴

Whether belief or conduct, the Free Exercise Clause protects only those that are religious.³⁵ Because the right to religious belief is absolute, the Supreme Court has proceeded cautiously in rejecting an individual’s claim that his beliefs are religious,³⁶ giving great deference to the individual.³⁷

While there is no clear definition of religion, the Supreme Court has established some standards that guide the determination of whether a particular belief or action is religious.³⁸ First, the Free Exercise Clause protects beliefs not associated with a god or any established religion so long as they occupy the same place in the life of the religious objector as would an orthodox belief in god.³⁹ Further, if a person’s beliefs are associated with an established religion, the person’s religious beliefs do not have to align with the dominant views of his religion.⁴⁰ To hold otherwise would require courts to determine whose perception of the religious commands are correct, a task entirely outside of the judicial function and competency.⁴¹ Second, courts may not question the truth or verity of religious doctrines or beliefs; rather, courts may only question whether the belief is sincerely held.⁴²

Finally, courts may not question whether religious beliefs are reasonable.⁴³ In Thomas v. Review Board of Indiana Employment Security Division,⁴⁴ Thomas, a Jehovah’s Witness, challenged the denial of his unemployment benefits under the Free Exercise Clause.⁴⁵ Thomas was assigned to work in the production of turrets for military tanks.⁴⁶ When he realized the turrets would be used in war, Thomas ultimately quit, claiming that contributing to the production of weapons violated his religion.⁴⁷ At an administrative hearing, Thomas testified that he believed that he could work in the production of raw material that might ultimately be used for the production of tanks without violating his religious precepts because he would not be contributing directly to the war.⁴⁸ The Indiana Supreme Court found Thomas’s religious beliefs to be inconsistent and, therefore, found his objection to be a philosophical rather than a religious choice.⁴⁹ The United States Supreme Court reversed, finding that Thomas had drawn a line between acceptable and unacceptable work based on his religious beliefs. The Court concluded that it was not the judiciary’s role to question whether the line drawn was reasonable.⁵⁰ Instead, “[t]he narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion.”⁵¹ Thus, if a person claims his conduct is connected to a religious belief, the reviewing court will most likely assent without further inquiry.⁵²

2. Permissible restriction on religious exercise

Prior to the 1990s, the Supreme Court struggled to elucidate any clear boundaries of permissible government restrictions on religious conduct.⁵³ In earlier cases, the Court declined to strike down laws that were generally applicable and neutral towards religion, notwithstanding any burden on religious exercise.⁵⁴ In later cases, the Court determined whether a law substantially burdened religious exercise;⁵⁵ if it did, the Court applied some form of interest balancing test.⁵⁶

In early cases, the Court did not subject a challenged law to any form of scrutiny if it found that the law was generally applicable and religiously neutral.⁵⁷ The Court was not concerned with the burden on individual religious exercise. Instead, it focused on the detriment that mandatory religious accommodations would impose on the government and society.⁵⁸

Over time, the Court shifted its concern from the broad detriment to society to the individual burden on religious exercise.⁵⁹ If the Court found that a law substantially burdened religious exercise, it used strict scrutiny to balance the government’s interest against the individual’s interests.⁶⁰ A law burdened religious exercise if it criminalized or penalized specific religious conduct.⁶¹ A law only indirectly or incidentally burdened religious exercise if it merely made religious observance more difficult or did not require the religious objector to engage in the violative conduct himself.⁶²

Thus, the government substantially burdened religious exercise when it denied unemployment benefits to an individual who quit his job because the job required that he violate his religious beliefs.⁶³ The state penalized the individual for adhering to his religious beliefs, thereby placing upon him a substantial pressure to modify his behavior.⁶⁴ However, a law that required owners to close their businesses on Sundays only indirectly burdened the religious exercise of an owner whose religious beliefs required that he also close his business on Saturdays.⁶⁵ The law did not require the business owner to engage in any behavior that his religion forbid; it simply made religious observance more expensive.⁶⁶ Additionally, conditioning the receipt of food stamps upon permitting the government to create a social security number only incidentally violated a Native American’s religious belief that a social security number would “rob” his daughter’s spirit.⁶⁷ The government had not required that the Native American create the spirit robbing number himself; rather, it merely required that he allow the government to create the number.⁶⁸

When the Court found that the government substantially burdened religious exercise, it reviewed the government action under strict scrutiny. The Court first applied strict scrutiny to laws burdening religious exercise in Sherbert v. Verner.⁶⁹ There, the Court reviewed whether South Carolina violated the Free Exercise Clause by denying unemployment benefits because an applicant refused to accept work that required her to work on her Sabbath.⁷⁰ The Court rejected the state’s argument that it had a compelling interest in preventing fraudulent claims of religious burden because the state had not raised this interest before the South Carolina Supreme Court; however, the Court noted that even if it were to accept this as a compelling state interest, the state would have to “demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”⁷¹ The Court’s decision in Sherbert announced the typical balancing test under strict scrutiny, which requires that the government demonstrate that it has a compelling interest and that it used the least restrictive means of achieving that interest.

In some cases, the Court applied a narrow compelling interest analysis, under which it required the government to show that applying the law to the individual religious objector served the government’s compelling interest. In Wisconsin v. Yoder,⁷² three parents, members of the Old Order Amish and the Conservative Amish Mennonite Church, challenged a Wisconsin law that mandated that children under the age of sixteen attend school.⁷³ The parents believed that sending their children to high school was “contrary to the Amish way of life,” and doing so would “endanger their own salvation and that of their children.”⁷⁴ The state argued that education was necessary to “preserve freedom and independence” by ensuring citizens become “effective and intelligent” participants in the political process and “self-reliant and self-sufficient participants in society.”⁷⁵ The Court refused to accept this general interest as sufficient justification for burdening the parents’ religious exercise.⁷⁶ Instead, the Court examined the “impediment to those objectives that would flow from recognizing” an exception for the Amish.⁷⁷ Because the government failed to demonstrate how an exception for the Amish would prevent it from pursuing its interest, the Court granted the parents a religious exemption.⁷⁸

In other cases, the Court used a broader compelling interest analysis, under which it permitted the government to justify a law by broadly defining its compelling interests such that it required uniform application.⁷⁹ For example, in United States v. Lee,⁸⁰ the Court found that the government’s broad public interest in providing Social Security insurance required uniform application of the Social Security Tax.⁸¹ There, a member of the Older Order Amish challenged compulsory participation in the social security tax system.⁸² He claimed that giving or receiving public benefits through the social security system would violate his Amish beliefs.⁸³ The Court did not question whether granting a religious exception in this case would impede the government’s interest.⁸⁴ Instead, the Court focused on the effect of religious exemptions in the aggregate, and found that permitting a “myriad [of] exceptions flowing from a wide variety of religious beliefs” would inhibit the government’s ability to achieve its compelling interest.⁸⁵

In 1990, the Court simplified its analysis, creating a predictable and uniform approach based on early Free Exercise Clause precedent. In Employment Division v. Smith, the Court held that the Free Exercise Clause does not require the government to provide religious accommodation from neutral, generally applicable laws.⁸⁶ The majority expressed concern that subjecting neutral laws of general applicability to strict scrutiny would foster anarchy by creating “constitutionally required religious exemptions from civic obligations of every conceivable kind.”⁸⁷ This concern was premised on the understanding that strict scrutiny must have the same meaning and application as in other areas of constitutional law, and under this uniform approach, many laws would fail.⁸⁸ The majority distinguished Smith from prior cases in which the Court applied the compelling interest test to laws burdening a person’s religious exercise.⁸⁹ Those cases fell into two categories: (1) hybrid cases involving religious exercise and another constitutionally protected right;⁹⁰ and (2) unemployment compensation cases in which the relevant statutes created individual exemptions for individuals who quit or refused available work for “good cause.”⁹¹

Thus, under the Free Exercise Clause, a law burdening religious exercise will be subject to strict scrutiny only if it is not a neutral law of general applicability.⁹² A law is not neutral if “the object . . . is to infringe upon or restrict practices because of their religious motivation.”⁹³ A law is not generally applicable if it only prohibits conduct when it is motivated by religious beliefs.⁹⁴

Thus, most Free Exercise claims will fail under Smith unless the government has specifically targeted religion.⁹⁵

B. The RFRA Reaction

This Section discusses Congress’s response to the Court’s decision in Smith and the expansion of statutory protections for religious exercise. Section I.B.1 discusses RFRA, enacted to restore protection of religious freedom to pre-Smith standards. Section I.B.2 discusses how the Supreme Court has construed and applied RFRA.

1. Accommodating religion beyond the Free Exercise Clause

In 1993, Congress enacted RFRA to overturn the Court’s decision in Smith.⁹⁶ RFRA states:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.⁹⁷

A person may use RFRA to file a claim against the government, or he may use RFRA to defend his otherwise unlawful actions.⁹⁸

Through enacting RFRA, Congress set out to restore the pre-Smith Free Exercise compelling interest test⁹⁹ developed in Sherbert¹⁰⁰ and Yoder.¹⁰¹ Congress found that pre-Smith cases provided “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”¹⁰² To determine whether the government met the compelling interest requirement, Congress expected courts to look to the pre-Smith Free Exercise precedent in applying this test.¹⁰³ Further, Congress cautioned courts against construing RFRA as applying a compelling interest test that is more or less stringent than it was prior to Smith.¹⁰⁴ Thus, Congress did not intend for courts to rely solely on Sherbert and Yoder; rather, it intended for courts to utilize the compelling interest test as it evolved up to the time of the Smith decision.¹⁰⁵

Under RFRA, this compelling interest test only applies where the federal government has substantially burdened a person’s religious exercise. RFRA does not require the government to meet strict scrutiny for every government action that has some incidental burden on religious exercise.¹⁰⁶ Therefore, the threshold question in any case is: Did the government substantially burden the claimant’s religious exercise? If not, then RFRA cannot be used to provide a religious accommodation. Again, Congress expected courts to look to pre-Smith precedent to determine whether a law or government action substantially burdens a person’s religious exercise.¹⁰⁷

2. The Supreme Court’s current construction

In Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal,¹⁰⁸ the Court held that under RFRA, the government must demonstrate that applying “the challenged law [to] . . . the particular claimant” serves the government’s compelling interest.¹⁰⁹ Courts must “look[] beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.”¹¹⁰ In other words, the government must demonstrate that it has a compelling interest beyond the mere interest in a uniform application of the law, and that providing a religious exemption to the particular claimant would undermine the achievement of that compelling interest.¹¹¹

In Hobby Lobby, the Court held that closely held, for-profit corporations can exercise religion and that, under RFRA, their religious exercise is protected.¹¹² In that case, several closely held, for-profit corporations challenged a government regulation promulgated under the Patient Protection and Affordable Care Act¹¹³ that required certain employers to provide their employees with insurance plans covering multiple forms of birth control.¹¹⁴ The corporations’ majority shareholders believed that several of these forms of birth control were abortifacients,¹¹⁵ and argued that the regulation burdened their religious exercise by forcing them to “facilitate access to contraceptive drugs or devices that operate after” conception.¹¹⁶ Applying RFRA, the Court found that the contraceptive mandate substantially burdened the corporations’ religious exercise.¹¹⁷ The government argued that the contraceptive mandate did not substantially burden the petitioners’ religious exercise because providing the coverage would not itself result in the “sinful” destruction of an embryo.¹¹⁸ An embryo would be destroyed “only if an employee chose to take advantage of the coverage” and then made an additional choice to use one of the four methods at issue.¹¹⁹ According to the majority, this reasoning confused the permissible question of whether religious exercise is substantially burdened with the impermissible question of whether the religious belief is reasonable.¹²⁰ Instead, it held that the narrow function of the Court in determining whether religious exercise is substantially burdened is to determine whether the line drawn between the belief and objectionable act is “an honest conviction.”¹²¹ Further, because the government already provided accommodations to churches and religious nonprofits, the government demonstrated that it had a readily available least restrictive alternative.¹²² Thus, the closely held, for-profit corporations were exempt from the contraceptive mandate because the government was unable to satisfy the requirements of RFRA.¹²³

In an attempt to quell the dissent’s fears that its decision will permit every corporation to become a law unto itself, the majority rejected the possibility “that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction.”¹²⁴ It reasoned that the government has a compelling interest in providing equal opportunity in the workforce, and Title VII’s prohibition on racial discrimination is the least restrictive means to achieve that goal.¹²⁵

Justice Ginsburg dissented on multiple grounds. First, she rejected the majority’s holding that corporations can exercise religion.¹²⁶ When an individual incorporates a business, he separates himself from the entity to escape personal liability and, therefore, should not be able to attach his religious beliefs to the corporation’s conduct.¹²⁷ Second, Justice Ginsburg found that the majority misconstrued the substantial burden analysis.¹²⁸ The majority’s honest conviction test substituted a factual finding that the petitioners’ beliefs are sincere and religious for a legal conclusion that the religious belief is substantially burdened.¹²⁹ Further, under the proper construction, the government had not substantially burdened the petitioners’ religious exercise.¹³⁰ Justice Ginsburg found that any burden the claimants felt was “too attenuated” because the government had not required them to “purchase or provide” the objectionable contraceptives, but only to disperse “money into undifferentiated funds that finance a wide variety of benefits.”¹³¹ Therefore, in Justice Ginsburg’s view, the majority opinion was a bold departure from pre-Smith jurisprudence because it eliminated RFRA’s substantial burden prong and expanded the scope of entities protected.¹³²

C. The Inclusive Interpretation of Title VII

As the Supreme Court was expanding protection for religious exercise under RFRA, it was simultaneously expanding constitutional protections for LGBT citizens.¹³³

In just twelve short years, LGBT citizens went from lacking the fundamental right to engage in intimate same-sex relationships to the right to marry same-sex partners.¹³⁴ During this brisk shift in the legal and sociopolitical climate, the EEOC and several circuit courts adopted an inclusive interpretation of Title VII’s proscription of sex discrimination.¹³⁵

Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an employee “because of such individual’s race, color, religion, sex, or national origin.”¹³⁶ In Price Waterhouse v. Hopkins,¹³⁷ the Court held that Title VII’s prohibition on sex discrimination prohibits an employer from taking gender into account, and therefore precludes discrimination against an employee for failure to conform to sex-stereotypes.¹³⁸ In other words, Title VII prohibits an employer from making adverse employment decisions based on the fact that a female employee fails to act or appear in a stereotypically feminine way.¹³⁹ Similarly, it prohibits firing a male employee for failing to present or act in a stereotypically masculine way.¹⁴⁰ Thus, in Price Waterhouse, an employer violated Title VII when it denied partnership to a female employee because she failed to behave as some of the partners believed a woman should.¹⁴¹

In 2012, the EEOC held that discrimination on the basis of nonconforming gender expression is actionable as sex discrimination under Title VII.¹⁴² The EEOC acknowledged that discrimination against a transgender employee might be based on sex stereotypes—the employer’s belief “that biological men should consistently present as men and wear male clothing”—but it recognized that this is just one way to prove sex discrimination.¹⁴³ The EEOC took guidance from the Supreme Court’s finding in Price Waterhouse that Congress intended to forbid employers from taking gender into account at all:

When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment “related to the sex of the victim.” . . . This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation . . . .¹⁴⁴

Thus, while the EEOC recognizes that discrimination against gender-nonconforming employees falls under “sex-stereotyping,” its decision is much broader than that of the Supreme Court’s in Price Waterhouse. The EEOC is not alone; the Sixth Circuit recently abandoned the requirement that a transgender employee demonstrate sex-stereotyping to prevail on a Title VII claim.¹⁴⁵ Instead, the court relied on Justice Brennan’s finding that Title VII requires “gender [to] be irrelevant to employment decisions,” and an employer does not treat gender as irrelevant if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.¹⁴⁶

Additionally, the EEOC has broadened the sex-stereotyping framework in holding that discrimination on the basis of sexual orientation is discrimination based on sex.¹⁴⁷ In Baldwin v. Foxx,¹⁴⁸ the EEOC found that sexual orientation cannot be defined without reference to sex—it is “inseparable from and inescapably linked to sex.”¹⁴⁹ When an employer discriminates based on sexual orientation, he necessarily treats the employee less favorably because of his sex.¹⁵⁰ For example, if “an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk,” the employer took an adverse action against the lesbian employee that he would not have taken had the employee been male.¹⁵¹ Thus, as construed, Title VII protects against discrimination related to a person’s gender expression and sexual orientation.¹⁵²

D. The Inevitable Clash Between Opposing Rights

It was only a matter of time before religious rights and civil rights clashed.¹⁵³

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage . . . . There is little doubt that these and similar questions will soon be before this Court.

135 S. Ct. 2584, 2625–26 (2015) (Roberts, C.J., dissenting) (citation omitted).

In Harris Funeral Homes, the United States District Court for the Eastern District of Michigan held that, under RFRA, a closely held, for-profit corporation was exempt from Title VII’s prohibition on sex discrimination.¹⁵⁴ Thomas Rost, the owner and majority shareholder of R.G. & G.R. Harris Funeral Homes, Inc., fired the funeral home director, Aimee Stephens, shortly after she informed him that she would begin transitioning from male to female.¹⁵⁵ The funeral home had no affiliation to any religious organization.¹⁵⁶ However, Rost had been a Christian for over sixty-five years, and he believed that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.”¹⁵⁷ Further, Rost believed that he would violate “God’s commands” by permitting a male funeral director to wear a skirt suit because he “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”¹⁵⁸ Rost did not deny firing Stephens because of her transition.¹⁵⁹ Instead, he claimed that retaining Stephens as an employee would violate his, and by proxy the funeral home’s, sincerely held religious beliefs. Thus, under RFRA, Rost argued that the government should exempt him from Title VII.¹⁶⁰

The district court agreed with Rost.¹⁶¹ First, it found that the EEOC substantially burdened Rost’s religious exercise.¹⁶² The court rejected the EEOC’s argument that it would only substantially burden the funeral home’s religious exercise if it required the home to provide female clothes to Stephens.¹⁶³ Adhering to the Supreme Court’s decision in Hobby Lobby, the court acknowledged that its function was not to decide whether the funeral home’s “religious beliefs are mistaken or insubstantial.”¹⁶⁴ Rather, the court could only determine whether the belief was “an honest conviction.”¹⁶⁵ Thus, because the court found Rost (and by proxy the funeral home) honestly believed he would violate his religious beliefs by permitting another person to express their gender identity, RFRA required the court to apply the compelling interest test.¹⁶⁶

The court assumed that the EEOC had a compelling interest in applying Title VII’s prohibition on sex discrimination to the funeral home.¹⁶⁷ The court did not read the Hobby Lobby dicta on Title VII—declaring that Title VII serves a compelling interest and is narrowly tailored—as exempting Title VII from the focused analysis RFRA demands.¹⁶⁸ Though the court expressed doubts that the EEOC had met this burden, the Supreme Court’s Hobby Lobby decision did not offer guidance on how to apply the compelling interest analysis to Title VII.¹⁶⁹ Therefore, the court assumed that the EEOC had a compelling interest.¹⁷⁰

Next, the court found that the EEOC failed to utilize the least restrictive method of ensuring that Rost complied with Title VII’s proscription of sex discrimination.¹⁷¹ The court rejected the EEOC’s argument that Title VII’s prohibition on sex discrimination was precisely tailored to ensure employees would not lose their jobs due to an employer’s gender stereotyping.¹⁷² Instead, the court required that the EEOC show that the burden on the funeral home’s religious exercise was the least restrictive means of eliminating clothing gender stereotypes at the funeral home.¹⁷³ The court found that requiring Rost to implement a gender-neutral dress code would have burdened his religious exercise less than requiring him to permit Stephens to wear a skirt.¹⁷⁴ Therefore, RFRA required the court to grant Rost a religious exemption from Title VII.¹⁷⁵

On appeal, the United States Court of Appeals for the Sixth Circuit reversed.¹⁷⁶ First, the Sixth Circuit held that requiring Rost to comply with Title VII did not substantially burden his religious exercise.¹⁷⁷ The court recognized that it was Rost’s sincerely held belief that the operation of the funeral home was a religious exercise, and that Rost honestly believed complying with Title VII would substantially burden his religious exercise.¹⁷⁸ However, the court rejected the notion that it was powerless to determine whether Title VII substantially burdened that religious exercise.¹⁷⁹ The court reasoned that ending the substantial burden inquiry after finding an honest conviction would only substitute the religious objector’s religious belief for legal analysis.¹⁸⁰

Second, the Sixth Circuit held that even if requiring Rost to comply with Title VII substantially burdened his religious exercise, the government met its burden under strict scrutiny.¹⁸¹ The court found that the EEOC has a compelling interest in eradicating sex discrimination, and exempting Rost would undermine that interest by permitting sex discrimination.¹⁸² Further, unlike the district court, the Sixth Circuit understood the Title VII dicta in Hobby Lobby to mean that Title VII is always narrowly tailored.¹⁸³ Thus, the court held that Rost was not exempt from Title VII.¹⁸⁴

E. Traversing the Free Exercise and Establishment Clauses

The Free Exercise Clause does not stand-alone; it is intrinsically bound to the Establishment Clause.¹⁸⁵ Both clauses operate to secure religious freedom, but, much like the definition of religion, the boundaries of the Establishment Clause are elusive.¹⁸⁶ At its most restrictive posture, the Establishment Clause prevents the government from advancing or benefiting religion in anyway.¹⁸⁷ At its most permissive posture, the Establishment Clause permits the government to aid or even favor religion, so long as the government does not officially establish a national church.¹⁸⁸

The Supreme Court’s incoherent jurisprudence stems from fundamental differences, in the minds of the Justices, of the degree of separation the Constitution imputes onto the church-state relationship.¹⁸⁹ The varying degrees of constitutionally-required separation between the government and religion are best represented by three theories: (1) strict separation, (2) accommodation, and (3) flexible accommodation.¹⁹⁰ The theory of strict separation—best represented by Thomas Jefferson’s metaphor of a “wall of separation between church and state”—is premised on the understanding that the Establishment Clause requires the government to remain completely impartial to religion, providing neither accommodations nor burdens.¹⁹¹ The accommodation theory on the other hand, is premised on the understanding that religion does not exist in complete isolation from the government; the government must provide some aid to religion just as it must provide aid to other establishments (e.g., providing building permits, police, fire engines, etc.).¹⁹² Under this theory, the government may accommodate religion without necessarily establishing one.¹⁹³ The flexible accommodation theory contends that the Establishment Clause simply prohibits the federal government from establishing a national church, nothing more.¹⁹⁴

As the Justices have adopted varying views on separation and integration, the Court has become increasingly divided in determining whether a given government action violates the Establishment Clause.¹⁹⁵ The Court’s fractured precedent incorporates several common analyses, each premised on—to varying degrees—the three theories outlined above. For purposes of this Comment, only three of these analyses are relevant.¹⁹⁶

First, under the Lemon test, developed in Lemon v. Kurtzman,¹⁹⁷ a statute “must have a secular legislative purpose”; it must not have a “principal or primary effect” of advancing or inhibiting religion; and it “must not foster ‘an excessive government entanglement with religion.’”¹⁹⁸

Second, under the endorsement test, the government must not have the primary purpose or effect of endorsing religion over non-religion.¹⁹⁹ The endorsement test is a mutation of the Lemon test that shifts the focus from whether the government’s primary purpose or effect is to advance or inhibit religion to whether the government’s action has the appearance of symbolically endorsing religion over non-religion.²⁰⁰ According to Justice O’Connor, courts should look through the eyes of a hypothetical “reasonable observer,” who is familiar with the “history, language, and administration of a particular statute” to determine whether the government acted with the primary purpose of endorsing a religion.²⁰¹ A statute has the effect of endorsing religion if it, intentionally or unintentionally, communicates a message of endorsement or disapproval of religion.²⁰²

Finally, under the coercion test, the “government may not coerce anyone to support or participate in religion or its exercise.”²⁰³ This test is best understood as establishing the minimum level of protection that the Establishment Clause provides; if the government coerces a person to conform to the beliefs of another, this will satisfy the primary effects prong of both the Lemon and endorsement test.²⁰⁴ In Lee v. Weisman,²⁰⁵ the Supreme Court held that a public school could not incorporate clergy-delivered prayer at a graduation ceremony because the prayer indirectly coerced attendees to participate in a religious exercise.²⁰⁶ The majority decided this case without referring to the Lemon test because, “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”²⁰⁷

First, the Court found that the religious exercise “bore the imprint of the state” because the school’s principal decided to include the prayer, chose a rabbi to deliver the prayer, and advised the rabbi to provide a nonsectarian prayer.²⁰⁸ Second, the state’s involvement placed public pressure on the attendees to at least appear to participate in the prayer, while the graduation setting placed peer pressure on attendees.²⁰⁹ This peer pressure was enough to indirectly coerce teenagers to stand for the prayer, thereby appearing to conform to the religious exercise.²¹⁰ Further, the fact that the ceremony was legally voluntary was not sufficient to overcome the coercive nature of the prayer.²¹¹ Graduation ceremonies provide intangible benefits to high school students, and “[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.”²¹² Thus, the state could not require students to choose between either appearing to participate in the religious exercise or forfeiting the intangible benefits associated with graduation.²¹³

Justice Scalia dissented, arguing that coercion violates the Establishment Clause only if it is supported “by force of law and threat of penalty.”²¹⁴ Incorporating clergy-delivered prayer at a graduation ceremony could not violate the Establishment Clause because attendance was not legally required and failure to stand for the prayer was not backed by threat of penalty.²¹⁵ If taken to its logical conclusion, this understanding of coercion would permit virtually all forms of symbolic endorsement.²¹⁶

At any given time, the Court may utilize any of these tests to scrutinize an alleged Establishment Clause violation.²¹⁷ The rest of this Section explores the relationship between the Establishment Clause and the Free Exercise Clause. Section I.E.1 explores cases in which the Court found a religious accommodation permissible under the Establishment Clause.²¹⁸ Section I.E.2 explores cases in which the Court found a religious accommodation impermissible under the Establishment Clause.²¹⁹

1. Playing between the joints

Though the religion clauses of the Constitution share the “common purpose of securing religious liberty,”²²⁰ they are fixed in diametrical opposition—“both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”²²¹ If the government may not advance religion in any way, it must not provide accommodation from laws that burden religious exercise, thereby forcing the government to violate the Free Exercise Clause. On the other hand, if the government is unable to interfere with religious exercise in any way, it must provide religious accommodations even where they have the effect of advancing religion, thereby violating the Establishment Clause. To avoid these logical extremes, the Supreme Court has made clear that there must be “room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”²²²

The Court has repeatedly confirmed the fundamental principle of neutrality: to remain within the “joints productive of benevolent neutrality,” the government may not favor religion over non-religion or favor one religion over others.²²³ Neutrality ensures all members of society, not just those subscribing to the majoritarian orthodoxy, are afforded religious liberty. The purpose of neutrality, as Justice Brennan noted:

is not only that government may not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.²²⁴

Therefore, while the government must remain neutral between religion and non-religion, and neutral between religious sects, the First Amendment does not require the government to completely separate itself from religion. Rather, so long as it acts neutrally, the government may accommodate religious exercise.²²⁵ Thus, while the Court has moved beyond strict separation by recognizing that some religious accommodations are permissible, neutrality serves to temper these accommodations.²²⁶

The government remains neutral when it provides relief from a government created burden on religious exercise, so long as the availability of that relief is independent of the claimant’s religious denomination. For example, in Cutter v. Wilkinson,²²⁷ the Court rejected a facial challenge to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),²²⁸ which provides prisoners an exemption from prison policies that substantially burden their religious exercise.²²⁹ The Court held that RLUIPA has the permissible primary purpose of alleviating government created burdens on religious exercise.²³⁰ Further, RLUIPA did not differentiate between religious sects; exemptions are provided regardless of the objector’s religious denomination.²³¹ Therefore, at least facially, RLUIPA falls within the “joints productive of a benevolent neutrality.”²³² However, the Court made clear that inmates should bring an as-applied challenge if RLUIPA exemptions favor religious interests over others by either imposing unjustified burdens on other inmates or jeopardizing the functioning of the prison.²³³ Thus, a statute must be facially neutral, and it must remain neutral in its application.

2. Playing outside the joints

The government’s attempt to accommodate religion oversteps the bounds of neutrality, and thereby violates the Establishment Clause, if its action has the effect of compelling one citizen to conform to the religious practices of another.²³⁴ It is a fundamental principle that the First Amendment “gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.”²³⁵ When the government enacts a statute that has the effect of forcing non-adherents to conform to the religious beliefs of another, it places religious interests above all others, and it has the primary effect of advancing or endorsing religion.²³⁶

In Estate of Thornton v. Caldor, Inc.,²³⁷ the Supreme Court held a statute that prohibited employers from requiring employees to work on their Sabbath violated the Establishment Clause.²³⁸ Under the Lemon test, this statute had the effect of advancing religion by imposing an absolute duty on employers and employees to conform to the religious practices of its religious employees.²³⁹ The statute took no account of the employer’s interests or the interests of employees who did not observe the same Sabbath.²⁴⁰ Specifically, it did not provide an exception for circumstances under which compliance would impose a substantial economic burden on the employer or significant burdens on employees required to work in the place of the Sabbath observer.²⁴¹ Therefore, the statute placed religious interests over all others.²⁴² Further, even under the endorsement test, the statute violated the Establishment Clause.²⁴³ Although the statute did not have the primary purpose of endorsing religion, it had the primary effect of endorsing religion over non-religion and the religion of one employee over the religions of others who have a different Sabbath.²⁴⁴

The Court has permitted a religious accommodation that had the effect of compelling a third party to conform to religious beliefs, but only where necessary to prevent the government from interfering with a church’s ability to define its religious mission. In Corporation of Presiding Bishop of The Church of Jesus Crist of Latter-day Saints v. Amos,²⁴⁵ the Court upheld § 702 of Title VII, which exempts churches from Title VII’s prohibition on employment discrimination on the basis of religion.²⁴⁶ The majority noted that an exemption is “not unconstitutional simply because it allows churches to advance religion, which is their very purpose.”²⁴⁷ In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,²⁴⁸ the Court held that the Free Exercise Clause and the Establishment Clause require a ministerial exception to Title VII.²⁴⁹ The Free Exercise Clause protects a church’s right to shape its own faith and mission through appointing ministers who “personify its beliefs,” while the Establishment Clause prevents the government from entangling itself “in such ecclesiastical decisions.”²⁵⁰ Thus, these cases represent a very narrow exception to the rule that religious accommodation cannot compel third party conformity.

In addition to forbidding the government from compelling third party conformance, the Court has repeatedly relied on Estate of Thornton for the proposition that the application of religious accommodation statutes such as RFRA must not impose unjustified burdens on third parties²⁵¹ and for the proposition that religious accommodations must not override other significant interests.²⁵² In such cases, the Court easily found that the requested religious accommodations did not burden any third parties and, therefore, had no opportunity to set a standard for determining whether such a burden is unjustified.²⁵³ As argued below, the principle of neutrality prohibits courts from balancing the religious interests of a private citizen against the religious or secular interests of another. Therefore, the Court’s reliance on Estate of Thornton for asserting otherwise is misplaced.²⁵⁴

II. Analyzing the Application of RFRA to Title VII
Under the Establishment Clause

On its face, RFRA is a constitutional accommodation of religious exercise because Congress acted with the permissible purpose of alleviating a burden on religious exercise.²⁵⁵ However, as applied to Title VII, RFRA constitutes an impermissible endorsement of religion. This Section argues that applying RFRA as construed by the Supreme Court violates the Establishment Clause in two ways. First, applying RFRA to Title VII constitutes a government action that coerces LGBT employees to conform to their employers’ religious beliefs. Second, RFRA accommodations from Title VII violate the principle of neutrality and are therefore impermissible endorsements.

A. The Supreme Court’s Construction of RFRA Represents an Extreme Expansion of Religious Liberty that Coerces Religious Conformance

This Section argues that the Supreme Court’s construction of RFRA expands the scope of religious accommodations beyond what Congress intended. Further, applying this construction to Title VII constitutes a government action that coerces religious conformance. Using Harris Funeral Homes, this Section argues that the United States District Court for the Eastern District of Michigan accurately applied RFRA as construed by the Supreme Court, and this application constitutes a government action that coerced Stephens to conform to Rost’s religious beliefs.

1. O Centro requires stricter scrutiny than pre-Smith cases

In O Centro, the Court held that the government must demonstrate that it has a compelling interest beyond the mere interest in a uniform application of the law. Further, it held that the government must demonstrate that providing a religious exemption to the particular claimant would undermine the achievement of that compelling interest.²⁵⁶ At first glance, this interpretation might not provoke concern, but upon further inspection, it is apparent that it marks the beginning of a broad expansion of RFRA protection. This compelling interest analysis seems to align with the text of RFRA, which permits the government to substantially burden a person’s religious exercise only if it demonstrates that the “application of the burden to the person” is in furtherance of a compelling interest.²⁵⁷ Additionally, it appears in harmony with the purpose of RFRA, as the Court rests its decision on the reasoning it employed in Yoder, a case specifically mentioned in the text of RFRA.²⁵⁸ However, leading up to Smith, the Court was inconsistent in how it applied the compelling interest test to particular cases.²⁵⁹ For example, in Sherbert, which is also cited in the text of RFRA, the Court did not require the government to demonstrate that application of the challenged government action to the person served its compelling interest.²⁶⁰ Thus, the cases mentioned in the text of RFRA do not delineate a clear requirement that courts apply this construction of the compelling interest test. Further, this construction conflicts with Congress’s expectation that the courts would rely on pre-Smith precedent as a whole and apply a compelling interest test that is no more or less stringent than that precedent sets forth.²⁶¹ Thus, the Court began its initial expansion of RFRA by construing it to require this stringent compelling interest analysis as opposed to the broader analysis also used in pre-Smith cases.

2. Hobby Lobby eliminates the substantial burden analysis and pits the
rights of corporations against the rights of employees

In Hobby Lobby, the Court expanded RFRA in two ways. First, the Court held that closely held, for-profit corporations can exercise religion and that their religious exercise is protected under RFRA.²⁶² In doing so, the Court candidly broke from its practice of deferring to pre-Smith precedent.²⁶³ The Court doubted that Congress meant to restrict RFRA’s statutory development to an “ossified” version of First Amendment case law.²⁶⁴ Thus, the Court intentionally established a new RFRA jurisprudence, untethered to the Constitution.

Second, the Court abdicated its authority to measure the substantiality of the government’s burden on religious exercise, and thereby eliminated the threshold question to determine whether RFRA applies.²⁶⁵ The Court held that its narrow function in determining whether religious exercise is substantially burdened is to determine whether the line drawn between the religious belief and objectionable act is “an honest conviction.”²⁶⁶ In doing so, the Court repurposed the honest conviction test set forth in Thomas—used to determine whether a belief is religious—for the substantial burden test that Congress set forth in RFRA—used to determine if RFRA applies.²⁶⁷ This analysis ignores pre-Smith cases in which the Court found that the government’s burden on religious exercise was incidental or indirect when it did not require the claimant to participate in the direct act that violated his religious beliefs.²⁶⁸ By ignoring these cases, the Court ignored Congress’s expectation that it would use pre-Smith case law to determine the substantiality of the burden.²⁶⁹ Thus, notwithstanding Congress’s intent, the Court’s construction of RFRA requires courts to apply strict scrutiny to every religious claim—so long as the person honestly believes their religious exercise is substantially burdened.²⁷⁰

By expanding RFRA protections to corporations, the Court effectively provided exemptions from laws specifically designed to circumscribe corporate power and protect individuals from harmful corporate conduct.²⁷¹ In doing so, the Court has pitted the rights of corporations against the rights of its employees. And, because it also eliminated the substantial burden requirement, RFRA will always require courts to apply strict scrutiny so long as the corporation says that it honestly believes the government has substantially burdened its religious exercise.²⁷²

Moreover, the majority’s dictum on Title VII, suggesting that Title VII would pass RFRA scrutiny, fails to solidify protection from all forms of employment discrimination.²⁷³ First, this dicta ignores the O Centro framework, which repudiates broad categorical government interests and requires the government to show that applying the law to the person serves its compelling interest.²⁷⁴ Further, unlike race, which is clearly an immutable characteristic, some judges believe that LGBT status is a choice.²⁷⁵ Even if courts do not view LGBT status as a choice, the outward projection of this status is partially within control of the employee.²⁷⁶ Therefore, rather than requiring the employer to maintain a flamboyant LGBT employee, a less restrictive alternative is to require the employee to present in a more hetero-normative or cis-normative manner. Thus, the government will not satisfy RFRA unless it requires the LGBT employee to conform to the religious beliefs of his employer by adopting a religiously-approved lifestyle or appearance.

The district court’s decision in Harris Funeral Homes affirms this outcome. Section II.A.3 argues that the district court’s decision is consistent with Supreme Court precedent and the district court, therefore, properly provided Rost a religious accommodation from Title VII. Section II.A.4 argues that, as evidenced by Harris Funeral Homes, granting the religious accommodation constitutes a government action that compels LGBT employees to conform to their employer’s religious tenets.²⁷⁷

3. RFRA mandates religious accommodations from Title VII’s ban on sex
discrimination

The district court’s decision in Harris Funeral Homes, continues the trend of diverging away from Congress’s intent to establish a pre-Smith interpretation of RFRA, and is consistent with Hobby Lobby. First, the district court properly found that the EEOC substantially burdened the funeral home’s religious exercise because it found that Rost honestly believed the EEOC did so.²⁷⁸ That is precisely what the Supreme Court’s ruling in Hobby Lobby requires.²⁷⁹ After assuming the EEOC had a compelling interest, the district court properly applied the narrower least restrictive alternative analysis as set forth in O Centro and applied in Hobby Lobby.²⁸⁰ Unlike the Sixth Circuit, the district court did not find itself beholden to the Hobby Lobby dicta.²⁸¹ Rather, it required the EEOC to demonstrate that it sought the least restrictive means of enforcing Title VII “to the person,” which the EEOC failed to do.²⁸² Thus, the district court correctly provided Rost a religious accommodation from Title VII.

The Sixth Circuit’s reversal diverged from Supreme Court precedent.²⁸³ Though the Sixth Circuit avoided an Establishment Clause confrontation, for better or worse, its analysis does not apply RFRA as construed by the Supreme Court.²⁸⁴ First, the court disregarded the ruling in Hobby Lobby that the narrow function of the court in determining whether religious exercise is substantially burdened is to determine whether the line drawn between the belief and objectionable act is an honest conviction.²⁸⁵ Instead, the Sixth Circuit found that the district court substituted a religious belief for a legal conclusion when it ended its inquiry after finding the claimant honestly believed the government substantially burdened his religious exercise.²⁸⁶ This finding mirrors Justice Ginsburg’s rigorous dissent in Hobby Lobby, and is irreconcilable with the majority’s ruling.²⁸⁷ Further, the Sixth Circuit relied on the nonbinding Hobby Lobby dicta to assume that Title VII was narrowly tailored.²⁸⁸ Therefore, even if the EEOC substantially burdened Rost’s religious exercise, RFRA still did not provide Rost a religious accommodation from Title VII.²⁸⁹

The Sixth Circuit’s decision does not reflect the current construction of RFRA because the circuit court misapplied the substantial burden analysis as directed by the Hobby Lobby decision and it assumed Title VII was the least restrictive means of furthering the EEOC’s compelling interest. Because the Sixth Circuit disregarded Supreme Court precedent and misapplied RFRA, the rest of this section uses the district court’s decision to demonstrate that, in the context of employment discrimination, applying the Supreme Court’s current construction of RFRA constitutes a government action that compels LGBT employees to conform to the religious ideology of their employer, and thereby violates the Establishment Clause.

4. Applying RFRA as construed by the Supreme Court constitutes a
government action that coerces LGBT employees to conform

Under the coercion test set forth in Weisman,²⁹⁰ the district court’s application of RFRA to Title VII in Harris Funeral Homes is a government action that coerced Stephens to engage in Rost’s religious exercise. According to the court, Stephens could have her job back but only if she wore gender-neutral attire.²⁹¹ Thus, the court required that Stephens either conform to Rost’s religious beliefs or forfeit her right to the intangible and tangible benefits of employment. Further, though Stephens is an adult and may not be so vulnerable as to succumb to peer pressure to conform,²⁹² RFRA allowed the court to apply much more than just peer pressure. Permitting Rost to utilize both RFRA and the federal courts was to permit him to “employ the machinery of the [federal government] to enforce religious orthodoxy.”²⁹³

Additionally, the court’s application of RFRA to Stephens’s Title VII claim bears the “imprint” of the federal government.²⁹⁴ RFRA does not say that individuals should conform to the religious ideology of others. It was the district court’s application of RFRA, as construed by the Supreme Court, that led to this outcome. In applying the least restrictive alternative test, the district court determined what degree of conformance RFRA legally required before Title VII would protect Stephens.²⁹⁵ Once the district court determined what degree of conformance was required, it presented Stephens with a choice of conforming to Rost’s religious views of gender expression or losing her job and all of the tangible and intangible benefits that go along with it.²⁹⁶ Thus, whether Congress intended to coerce religious conformance or not, implementing the statute as construed by the Supreme Court has this effect.²⁹⁷

Further, even under Justice Scalia’s theory of coercion in Weisman, the district court’s application of RFRA to Stephens’s Title VII claim legally coerced Stephens to conform to Rost’s religious beliefs.²⁹⁸ The court’s judgment created both a force of law and a penalty. First, by determining the least restrictive means to achieve the EEOC’s interest, the court’s decision acts as a force of law, demarcating the bounds of conformance to which Rost may legally subject Stephens. Further, the court’s decision forces Stephens to conform to Rost’s religious beliefs under threat of losing her job—should Stephens refuse to adhere to Rost’s religious beliefs by wearing female clothing, Rost may legally terminate her employment.²⁹⁹ Thus, even under the most conservative theory of coercion, applying RFRA to Title VII contravenes the Establishment Clause.

B. Religious Accommodation from Title VII Falls Outside the Joints Productive of Benevolent Neutrality

The religious accommodations that RFRA carves out of Title VII violate the principle of neutrality. First, this Section argues that, notwithstanding the Supreme Court’s indication otherwise, the principle of neutrality prevents courts from balancing one citizen’s religious interests against another citizen’s secular or religious interests. Therefore, the correct interpretation of Estate of Thornton admonishes religious accommodations that permit one citizen to compel or coerce another citizen to conform to his religious tenets. Using Harris Funeral Homes, this Section argues that a RFRA accommodation from Title VII violates the principle of neutrality because it permits an employer to compel a LGBT employee to conform to the employer’s religious orthodoxy.

1. The principle of neutrality precludes balancing the interests of third parties

The Supreme Court’s reliance on its decision in Estate of Thornton as admonishing unjustified burdens on third party interests is misplaced.³⁰⁰ This interpretation implies that courts have the authority to balance the religious interests of one citizen against the religious or secular interests of another. This section argues that any attempt to balance religious and secular burdens between citizens violates the principle of neutrality. Instead, the Court should rely on Estate of Thornton as prohibiting the government from providing religious accommodations that permit one citizen to coerce or compel another citizen to conform to his religious beliefs.³⁰¹

The Court has not had an opportunity to clarify how it will balance the religious interest of one citizen against the religious or secular interests of another, but its Hobby Lobby opinion contains enlightening dicta.³⁰² Both the majority and Justice Kennedy proffer balancing frameworks that fly in the face of neutrality and the Establishment Clause.³⁰³

The majority in Hobby Lobby conceded that in applying RFRA, courts must “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”³⁰⁴ Under its view, however, simply framing a statute as conferring a benefit on third parties does not preclude an employer from receiving a religious accommodation.³⁰⁵ Otherwise, the government could render RFRA inoperable by framing all regulations as benefiting third parties.³⁰⁶ For example, this would permit the government to require that all restaurants remain open on Saturdays to give employees an opportunity to earn tips, and thereby exclude any person whose Sabbath is on Saturday from owning a restaurant.³⁰⁷ Instead, third party burdens only guide the compelling interest and least restrictive means analysis of RFRA.³⁰⁸

Yet, the majority provided no standard for determining which third party burdens are sufficient to outweigh a claimant’s interest in religious exercise or which religious interests are sufficient to justify burdening third parties.³⁰⁹ Simply using third party burdens to guide the compelling interest and least restrictive means analyses requires courts to judge the third party’s interests in relation to the objector’s religious interests. Thus, if the reviewing court ultimately grants a religious exemption, it favors religious interests over others, thereby violating the principle of neutrality.³¹⁰ Additionally, the majority’s holding that it lacked the capacity to measure the burden on religious exercise casts doubt on whether it has the capacity to objectively balance these interests.³¹¹

Though the majority rejected the argument that statutes designed to confer a benefit on third parties should always preclude religious accommodation, it did not offer any alternative.³¹² The majority leaves open the question of how courts should distinguish between a law that provides the benefit of working on Saturday from a law that provides the benefit of equal employment opportunities; or conversely, how courts should distinguish between religious accommodations that burden employees by not providing the opportunity to work on Saturdays, from religious accommodations that burden employees by subjecting them to discrimination in the work place.³¹³

Justice Kennedy suggests an equally paradoxical framework: a religious exemption should not be granted where a person’s religious exercise “unduly restrict[s] other persons . . . in protecting their own interests, interests the law deems compelling.”³¹⁴ Under this view, so long as the third party can defend his own compelling interests, the judiciary can grant a religious accommodation.³¹⁵ Thus, this approach still requires courts to judge a third party’s interests in relation to the objector’s religious interests, and therefore creates the risk that a court will violate the principle of neutrality.³¹⁶ Further, it is unclear how a court would determine whether an individual has a compelling interest.³¹⁷

The Court should not rely on its decision in Estate of Thornton as admonishing unjustified third party harms, which allows the judiciary to place its power behind religious interests. Rather, it should rely on that decision as admonishing religious accommodations that permit one citizen to compel or coerce another to conform to his religious ideology. This would shift the Court’s focus in determining whether a religious accommodation is permissible back to the fundamental principle upon which Estate of Thornton was predicated: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.”³¹⁸ Additionally, this would keep Establishment Clause restrictions on religious accommodation abreast with Establishment Clause restrictions on other government actions³¹⁹ and would prevent the Judiciary from exceeding its jurisdiction.³²⁰

Further, this interpretation would provide a workable solution to determine how courts should distinguish between a law that provides the benefit of working on Saturday from a law that provides the benefit of equal employment opportunities. An employer who closes his business on Saturday, does not, in pursuance of exercising his religion, require employees to conform to his religion; these employees are free to work elsewhere on Saturdays and still keep their job. In the context of employment discrimination, the employer, in pursuance of exercising his religion, denies equal treatment unless an employee conforms to his religious beliefs.³²¹ Thus, while both laws could be framed as benefiting third parties, courts would only deny religious accommodations under one law.

2. RFRA accommodations permit employers to compel religious conformance
from employees

In Harris Funeral Homes, the district court’s application of Title VII violated the principle of neutrality because it permitted Rost to compel Stephens to conform to his religious beliefs. The district court’s application of RFRA mirrors the statute struck down in Estate of Thornton because it imposed on Stephens an absolute duty to conform to Rost’s religious, cis-normative view of gender.³²² Unlike the statute struck down in Estate of Thornton, RFRA does permit the court to conduct a balancing test; however, this test is only designed to balance a citizen’s interest in exercising his religion against the government’s interests in regulating conduct.³²³ Further, even if RFRA did permit the court to balance Stephens’s interests, the principle of neutrality prevents this.³²⁴ Indeed, the court did not feign an attempt to account for the burdens on Stephens.³²⁵ Instead, it developed a least restrictive alternative by looking solely at the EEOC’s compelling interest and Rost’s religious objection. Rost objected to permitting a male employee to dress in female clothing, and the EEOC had a compelling interest in eliminating gender stereotypes.³²⁶ Thus, the court’s solution that Rost reinstate Stephens so long as Stephens adheres to a gender-neutral dress-code was tailored without any consideration of the effect this would have on Stephens.³²⁷ This solution compels Stephens to conform to the religious, cis-normative views of gender expression that were unilaterally designated by Rost and merely circumscribed by the EEOC’s compelling interest (not Stephens’s). By providing a religious accommodation that gives Rost the power to compel Stephens to conform to his religious beliefs, this application of RFRA exceeds the bounds of benevolent neutrality and therefore violates the Establishment Clause.³²⁸

Conclusion

The Supreme Court’s construction of RFRA mandates sweeping protections of religious exercise at the expense of religious liberty. This broad interpretation knows no bounds and would require exemptions for even the most benign burdens on religious exercise. In particular, the Court’s construction of RFRA presents a serious threat to the autonomy and liberty of LGBT employees by permitting employers to blatantly discriminate against them.

Applying RFRA, as construed by the Court, to Title VII’s prohibition on sex discrimination constitutes a government action that compels LGBT employees to conform to the religious orthodoxy of their employers. Providing RFRA accommodations in this context forces an LGBT employee to choose between conforming to his employer’s religious hetero, cis-normative views of sexual orientation and gender expression or forfeiting his job and all the tangible and intangible benefits it provides. Further, the compulsion to conform is attributable to the judiciary, not just the employer, because the reviewing court determines the degree to which the employee must conform to keep his job.

Further, RFRA accommodations from Title VII violate the fundamental principle of neutrality. In granting a RFRA accommodation from Title VII, courts place religious interests above all others by permitting an employer to, in pursuit of his religious exercise, compel his employees to conform his religious beliefs.

Religious exercise is not absolute.³²⁹ At all times, the government must walk the fine line traversing the Free Exercise and Establishment Clauses. By coercing LGBT employees to conform to the religious orthodoxy of their employer, RFRA moves beyond the zone of permissible accommodation into the realm of impermissible religious endorsement.

Playing Outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII

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