Can Lawyers Use Religious Exemptions to Public Accommodations Laws?

Can Lawyers Use Religious Exemptions to Public Accommodations Laws?

by Dianne Post, Attorney
Legal Committee Chair on the board of Secular Coalition for Arizona

On April 12, 2019, a man in west Phoenix, Arizona shot and killed his wife and two children, and then he drove to another location and shot and killed a man there. When the police stopped him he said that he had a sincerely held religious belief that in his church, not only would this behavior be all right, it would be mandated by God because the man thought the woman was having an affair with the other man.

This is where we are going with this movement to justify a religious exemption to public accommodations laws. And it is a movement. It is an attempt to change this democracy into a theocracy. As the court said in Washington v. Arlene’s Flowers, it is not about cakes or flowers any more than the sit-ins in the south in the 1960’s were about sandwiches and soda. This is about equality and fairness.  This movement is a betrayal of American values and the Constitution.

The Cover Question Was Can Lawyers Decline Cases?

I was asked by the Religious Liberty Section of the State Bar of Arizona to speak in their annual seminar at the State Bar conference on the issue of whether lawyers can decline cases based on their religious beliefs. The simple answer is of course lawyers can decline cases.  Lawyers are taught we should decline cases if we are not competent in that area; are too busy; can see that the lawyer and the client don’t fit; the potential client has hired, fired, and/or sued other lawyers; s/he is unreasonable in their expectations; the person won’t listen; the person doesn’t supply the lawyer with all the facts needed; if it’s late in the case; if there is a conflict of interest or if the case or client is repugnant to the lawyer. 

What a lawyer cannot do is refuse if the reason is a violation of the law, if to do so is to avoid the lawyer’s responsibility for taking pro bono or unpopular or repugnant clients or matters, or would harm the administration of justice such as bias and discrimination. 

Be mindful that lawyers have a higher standard to meet than others. The Preamble of our Rules of Professional Conduct reminds us that as representatives of clients, officers of the legal system, and public citizens, we have a “special responsibility for the quality of justice.”  The American Bar Association has proposed revising an ethical rule to include non-discrimination but that suggestion has met with much hostility. Only two states have passed it:  Vermont and Maine.  Arizona has tried it three times and failed. Yet the rule itself says in section (g) that: This Rule does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

So clearly, lawyers can decline cases.  With all these ways of getting out of a case, if a lawyer can’t come up with a good argument, s/he should think about going into another line of work.  What we don’t need is a religious reason.  “The Bible tells me so” should not be a reason.

What’s the Real Issue?

So if being able to refuse a case is not the real issue, what is the issue?  The underlying movement here is to create a religious exemption to public accommodations laws. We’ve seen this attack across the country in a variety of public services. To create such an exemption would take us back to the 1950s when hotels, restaurants, department stores etc. could refuse to serve Black people. The Bible was the justification for the separation of the races as it is today for the attack on the LGBT community. 

These ideas are not just limited to the LGBT community but extend to women’s health care and Muslims. A woman in South Carolina wanted to be a foster mother and passed all the checks.  She was denied the ability at the last question. Why?  Because she was the wrong religion.  What was that religion?  Catholic.  Maddonna v. U.S. Department of Health and Human Services

The appeals court in that case rejected the discrimination asserting that, “religious belief will not excuse compliance with general civil rights laws.”  The government may not grant special religious exceptions from a law when it would cause harm to others. 

In Oklahoma, a gun range owner put up a sign saying “Muslim-free” establishment. An Army reservist sued and though the owner took down the sign, he replaced it with one barring terrorists.  Fatihah v. Neal

The religious nationalists have a countrywide strategy and have brought cases across the U.S.  Many of the cases are in states where they know they will lose so they can control the narrative as the case is appealed up to the U.S. Supreme Court. 

In Cervelli v. Aloha B&B the business owner refused a lesbian couple because of their sexual orientation. The owner claimed the law did not apply because the business was in their home. The court said no, it’s a business wherever you choose to put it. They argued the right to privacy. The court said no, you invited the customer in and your actions deprive others of their dignity. The government has a fundamental interest in prohibiting discrimination. They argued violation of intimate right of association. The court said no that protects family relationships but you invited the customer in, they are not intimates but strangers you made guests. The owners argued it was their constitutional religious right because they were Catholic and that religion thinks homosexuality is wrong. The court said no, the State has a compelling interest that is narrowly tailored, it is against public policy, is a stigmatizing injury, and it survives strict scrutiny.

The Washington v. Arlene’s Flowers case was decided on remand June 6, 2019.  In this case, the flower shop owner knew the customer who spent about $1,000 a year in her shop was gay.  She sold him anything he wanted until he wanted flowers for a wedding which she claimed would violate her Southern Baptist beliefs on the basis that she would be endorsing gay marriage by selling him flowers.  She admitted that if she sold flowers to a Muslim or an atheist she would not be endorsing those beliefs – just gay marriage.  She was happy to take the money of a long-standing customer so long as he didn’t marry someone she didn’t approve of. 

The case was appealed to the U.S. Supreme Court who remanded it back after the Masterpiece Cake decision asking the Washington Supreme Court to determine if the decision had been contaminated by any religious animus.  On June 6, 2019 the Washington Supreme Court answered with a resounding no and reinstated the original decision.  The only animus here was toward the LGBT community.

But this type of religious discrimination is not limited to gays. Over the objection of an Orthodox Jewish community, a court in New Jersey in A Country Place v. Curto et al ruled that the swimming pool regulations that determined that women and men had to swim at different times and then gave all the best and most times to men was discrimination against women and could not stand. 

Even more dangerous is using religion to refuse medical care and treatment to women.

The federal Department of Health under the current administration has devised a new religious rule that will endanger millions of woman.  Under the rule, health care workers can refuse to treat patients under the guise of religious freedom. Such rules already exist so long as the patient is given notice and options. This rule would increase the people and organizations to which it applies, and would cover additional things such as payments, grants, contract, and insurance.  All a person or organization has to do is claim a religious justification and they can discriminate at will.   

Ambulance drivers could refuse to drive a person to the hospital. ER rooms could refuse to give the morning after pill to a rape or incest victim. A nurse could refuse to put in an IV for a person with AIDS. A clerk could refuse to sign in a Muslim or atheist.  The staff could refuse to adhere to end of life decisions of patients.

This rule imposes the religious dogma of some people on patients and violates the Hippocratic Oath to do no harm. The rule has been enjoined by the courts so far. But arguments of religious freedom are being used to attack non-discrimination laws, to evade child welfare laws such as in Colorado City/Hilldale on the Arizona/Utah border where Warren Jeffs ran his harem, deny health care and even, in Arizona, to kill people. 

None of this is new.  Blacks were denied admission into white hospitals at one time and often died before reaching a Black hospital.  A woman in Sierra Vista, AZ who was having a miscarriage was denied services at a Catholic hospital so had to be driven another hour to Tucson. Because the 211 helpline in Arizona had three calls about abortion in 2018 out of 265,000 calls, the legislature defunded it in 2019 at the behest of one person. So they hurt thousands of other people who need help to support the religious extremism of one person. 

Such discrimination was wrong before.  It’s wrong now.  Excluding any category of people from society because of some other group’s alleged personal belief is not democracy, justice, or ethical. Why do we seem incapable of learning this simple fact?

Ethics Rule Regarding Discrimination

Though there has been opposition to adding non-discrimination to the ethics rules of attorneys, some attorneys have been disciplined or disbarred for such actions.  In Michigan an attorney didn’t like the response of a young Black attorney so he called her a little girl, told her to know her place, and asked if she was a child.  But he wasn’t done.  He went to his office and on Facebook he asked why young Black women think they could get into a man’s face. He accused her of “angry Black women’s syndrome” but in fact he seems to have been guilty of “angry white man” syndrome or “oh no, someone’s gotten into my white, male privilege” syndrome.  He was disciplined.

In April 2019, in Hubbard v. Kentucky Bar Association an “angry white man” printed a photo of the opposing counsel and her partner from the internet, wrote on it “two pitiful fat ugly lesbians” and mailed it to her. That probably wouldn’t have gotten him much but then he lied about it in court, filed a retaliation complaint against the judge, and tried to talk another judge into running against that judge. This is the type of behavior women and people of color deal with every day. 

As recently as June 2019, an Asian woman professor of law sued Sturm College of Law in Denver for wage bias because she was making $30,000 less than the men though she had been there the longest and was tenured.  An ethics probe was launched in June 2019 against the district attorney in Nashville after he said that he would not protect LGBT victims in domestic violence situations because he doesn’t view their marriages as real marriage and that Islam and Muslims are evil. 

While many were disappointed by the decision of the U.S. Supreme Court in the Masterpiece Cake case – they just kicked the can down the road – they did make some very positive statements. 

            Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the       laws and the Constitution can, and in some instances must, protect them in the             exercise of their civil rights. The exercise of their freedom on terms equal to             others must be given great weight and respect by the courts. At the same time,             the religious and philosophical objections to gay marriage are protected views and      in some instances pro­tected forms of expression. ….  Nevertheless, while those    religious and philosophical objections are protected, it is a general rule that such     objections do not allow business owners and other actors in the economy and in         society to deny protected persons equal access to goods and services under a             neutral and generally applicable public accommodations law.” 

Slavery was once justified by religion. Banning of Muslims is justified by religion.

LGBT discrimination is justified by religion, violence and discrimination, especially in health care, against women was and is justified by religion. These are facts not hostility to religion.

Where is the support for this proposition?

The recent public opinion poll by Public Religion Research Institute (PRRI) reported found that 69% of Americans favor laws that would protect LGBT people from discrimination in jobs, public accommodations, and housing.  That has held steady for eight years. Nondiscrimination protections for LGBT Americans enjoy bipartisan support, with majorities of Democrats (79%), independents (70%), and Republicans (56%) reporting that they favor laws that would shield LGBT people from various kinds of discrimination.

Solid majorities of all major religious groups in the U.S. support laws protecting LGBT people from discrimination in housing, public accommodations, and the workplace.

While white evangelical Protestants (54%) and Jehovah’s Witnesses (53%) are least likely to support LGBT nondiscrimination protections, even among these groups support remains in the majority.

In 2018, 57% of Americans opposed allowing a small business owner in their state to refuse products or services to gay or lesbian people if providing them would violate their religious beliefs. Only 36% Americans support such a policy.

Majorities of Americans of all racial and ethnic groups oppose religiously based service refusals. Black Americans (66%) are most likely to oppose allowing small business owners to refuse service to gay and lesbian people based on their religious beliefs.  They experienced it and know what undergirds the idea – the inferiority and subordination of that group – and the harm from it. 

The next highest group that opposed such discrimination was Hispanic Americans (60%), Asian-Pacific Islander Americans (59%), people who are mixed race or another race (58%), white Americans (54%), and Native Americans (52%).

Majorities of most major religious groups oppose religiously based service refusals, including:  83% of Unitarian Universalists, 69% of Americans who identify with New Age religions, 68% of Jews, 66% of Black Protestants, Buddhists and the religiously unaffiliated, 61% of Hispanic Catholics, 60% of Muslims and Hindus, 59% of other non-white Catholics,  57% of Americans who identify with other religions, 55% of white Catholics, 54% of white mainline Protestants, 53% of Orthodox Christians, and 52% of Hispanic Protestants. 

A majority of Americans in 40 states believe small business owners in their state should not be allowed to refuse service to gay and lesbian people whereas opposition to nondiscrimination protections is concentrated in the South and based on religion. So who do the attorneys represent as they try to prohibit the LGBT community from the protections of the law? White evangelical Protestants (55%) and Mormons (54%) stand out as the only religious groups where a majority support allowing small business owners to refuse to serve gay and lesbian customers if doing so violates their religious beliefs.

For nondiscrimination laws in general, white evangelical Christian Republicans still support at 47% and non-white evangelical Christian Republicans support at 49% – so nearly half.  Half of a tiny sliver of people is trying to impose their beliefs on the entire population of the U.S. They should not be allowed to do so.

Conclusion

We all know this is about much more than lawyers refusing clients, bakers not baking cakes or florists not arranging flowers. It’s about historical revisionism trying to replace our democracy with a theocracy. Anything can be a religion – Branch Davidians, Scientology, Jim Jones People’s Temple and many others.  I know of a singer trying to make himself a religion and even a lawyer to get the tax benefits. Do you really believe that these people – no matter how bizarre and out of the mainstream their beliefs may be – should trump the law?

If they are allowed this excuse, we should be able to question them on their beliefs that we can’t now. Otherwise how do we know this is really a religious belief and not just bias or hatred? What’s really happening here is an effort to give special privileges to a narrow segment of white Christian mostly older males while stigmatizing other groups and refusing them equal protection under the law. It’s based on the patriarchal underpinnings of religion and the fear of losing power. We should reject it from the root to the branch.

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