I appreciate Marty’s argument, but I’m not sure it quite works.
The burden of giving up your business (if you want to avoid violating your
religious beliefs) strikes me as quite substantial, just as is the burden of
giving up your unemployment compensation (if you want to avoid violating your
religious beliefs). And I don’t think the fact that “you knew the job was
dangerous when you took it” changes that analysis, see Hobbie v. Unemployment
Appeals Comm’n:
The Appeals Commission also attempts to distinguish this case by arguing that,
unlike the employees in Sherbert and Thomas, Hobbie was the "agent of change"
and is therefore responsible for the consequences of the conflict between her
job and her religious beliefs. In Sherbert and Thomas, the employees held their
respective religious beliefs at the time of hire; subsequent changes in the
conditions of employment made by the employer caused the conflict between work
and belief. In this case, Hobbie's beliefs changed during the course of her
employment, creating a conflict between job and faith that had not previously
existed. The Appeals Commission contends that "it is . . . unfair for an
employee to adopt religious beliefs that conflict with existing employment and
expect to continue the employment without compromising those beliefs" and that
this "intentional disregard of the employer's interests . . . constitutes
misconduct." Brief for Appellee Appeals Commission 20-21.
In effect, the Appeals Commission asks us to single out the religious convert
for different, less favorable treatment than that given an individual whose
adherence to his or her faith precedes employment. We decline to do so. The
First Amendment protects the free exercise rights of employees who adopt
religious beliefs or convert from one faith to another after they are hired.
The timing of Hobbie's conversion is immaterial to our determination that her
free exercise rights have been burdened; the salient inquiry under the Free
Exercise Clause is the burden involved. In Sherbert, Thomas, and the present
case, the employee was forced to choose between fidelity to religious belief
and continued employment; the forfeiture of unemployment benefits for choosing
the former over the latter brings unlawful coercion to bear on the employee's
choice.
(By the way, I’m not sure on these facts whether the Colorado cake shop went
into business before or after Colorado banned sexual orientation discrimination
in public accommodations, but I’m happy to set that aside for purposes of the
broader discussion.)
Eugene
Marty Lederman writes:
Or to put Paul's point in a slightly different, more doctrinal light -- and one
that harkens back to our landlord discussions circa 1998 [you can look it up!]
-- if we're in a RFRA jurisdiction, there is far less of a "substantial burden"
on one's religious exercise if the government "sanction" is merely "if you're
not willing to serve everyone, then you can't be a common carrier" than if the
government actually makes it unlawful for you to do what your religion requires
(e.g., O Centro, Yoder).
Of course, the burden is higher on those who developed a reliance interest on
their being able to discriminate -- e.g., those who paid huge costs in terms of
time and money in learning a profession, and building a business, at a time
when the business was not viewed as a common carrier, or where (in this case) a
prohibition on sexual-orientation discrimination was not foreseeable.
But if one entered the profession when it was already a rule that "you must
serve all comers," or "you can't discriminate on the basis of X,Y and Z," then
surely the denial of a religious exemption causes far less of a burden than in
O Centro-like cases. Not no burden, of course -- after all, if it's always
been your dream to be a police officer, or to own a retail business in a state
where such businesses have to serve all comers, then those laws do put some
pressure on you to deviate from your religious beliefs. But not nearly as much.
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