In March 1967, a three-judge district court in Lee v. Macon County Board of Education condemned Alabama's "relentless opposition" to the elimination of its "dual public school system such as that condemned by Brown v. Board of Education." In particular, it rejected a thinly disguised attempt to shift the responsibility for evasion to individual parents, declaring that "[i]t is . . . axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."
Fifty years later, Alabama is once again trying to "induce, encourage and promote" private acts of discrimination, this time on the basis of sexual orientation and/or gender identification. The Alabama Child Placing Agency Inclusion Act (H.B. 24) does not mention these traits. Nor does it invoke a central tenet in the law of child custody and care in Alabama, the "best interests of the child." Rather, it speaks simply and repeatedly of the need to protect "sincerely held religious beliefs," invoking as its central legal premise "the inherent, fundamental, and inalienable right to free exercise of religion protected by the First Amendment to the United States Constitution."
Statutes of this sort have become increasingly popular in response to recent decisions by the Supreme Court, variants on what the late Justice Antonin Scalia characterized as "modest attempt[s] by seemingly tolerant [citizens] to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of laws." Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting). In each instance, religion and religious beliefs were part of the debate. In Romer, in which the Court invalidated a state constitutional amendment that altered "the legal status of gays and lesbians in the private sphere," the state argued that the contested provision was grounded in "respect" for "the liberties of landlords or employers who have personal or religious objections to homosexuality." In Lawrence v. Texas, which protected the right of same sex adults to engage in private, consensual intimate sexual conduct, the Court noted that religion had been one of the "powerful voices" that "for centuries" had "condemned homosexual conduct as immoral." And in Obergefell v. Hodges, Justice Kennedy acknowledged the power and pervasiveness of religious objections to same-sex marriage, declaring that "religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."
None of the religious claims prevailed. That may have reflected how the cases were litigated. More likely, it tracked an historical reluctance to sanction religious justifications for invidious discrimination. See Loving v. Virginia, (noting the trial judge declaration that "Almighty God created the races" and "placed them on separate continents," a "fact" that "shows he did not intend for the races to mix"); Newman v. Piggie Park Enterprises, (rejecting as "patently frivolous" the contention that the Civil Rights Act of 1964 "was invalid because it 'contravenes the will of God' and constitutes an interference with 'the free exercise of religion'"); Bob Jones University v. United States, (an institution whose "sponsors genuinely believe that the Bible forbids interracial dating and marriage" could not qualify for federal tax-exempt status). I'm confident H.B. 24's champions will object, vehemently, to the suggestion that their deep seated hostility toward LGBT individuals is comparable to their State's past embrace of "the fundamental principles of segregation," at the heart of which was the belief that "[i]ntegration of all human life . . . would destroy humanity." Lee, n. 16. Rather, they believe they are promoting an incontrovertible moral good, a reading of the Christian Bible that twice elected - and now twice ejected - Chief Justice Roy Moore characterized as "the principles that right conscience demands," a "steadfast view of homosexuality as an intolerable evil." Ex parte H.H. (Moore, C.J., concurring).
H.B. 24's constitutional legitimacy must then turn on the premise that its embrace of "religious liberty" makes it different. But it is no accident that Obergefell is carefully couched in terms of "convictions" and "advocacy," as opposed to positive acts of discrimination. That reflects a largely unknown (at least in the body politic) but doctrinally powerful qualification on the "free exercise of religion": the belief/conduct dichotomy. Originally articulated in Reynolds v. United States, belief/conduct was reaffirmed in Employment Division v. Smith, which rejected the notion that free exercise claims would be assessed within the rigors of "strict scrutiny," under which government interest must be "compelling" and the means selected to attain that goal be "the least restrictive available." The Court has "never held," Justice Scalia stressed, that "an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." That risked "'mak[ing] the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.'"
H.B. 24 accordingly hedges its bets, giving the Free Exercise Clause first billing even as it adds a state-based layer of protection, the Alabama Religious Freedom Amendment, which "protects the free exercise of religious rights of Alabama citizens by prohibiting the government from burdening the freedom of religion of a person unless the burden is in furtherance of a compelling governmental interest and is done in the least restrictive means." H.B. 24, § 2(8) (citing Ala. Const. of 1901 amend. 622). That arguably mimics the holding in Burwell v. Hobby Lobby Stores, Inc., in which two companies asserting the "sincere religious belief that life begins at conception" were allowed to "object on religious grounds to providing health insurance that covers methods of birth control that . . . may result in the destruction of an embryo."
Burwell was not a Free Exercise case. Rather, it was premised on the Religious Freedom Restoration Act of 1993, a Congressional decision to limit its own authority by applying "strict scrutiny" to any federal action imposing a "substantial burden on a person's exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. §§ 2000bb-1(a) & (b). "By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required." Burwell, 134 S. Ct. at 2767. The two companies that brought the case were closely held corporations whose corporate identity (their "personhood," for constitutional purposes) reflected their sincerely held religious beliefs. H.B. 24 sweeps more broadly, extending its protection to any "individuals [or] organizations" that engage in such activities. Nevertheless, it is difficult to envision a court in Alabama denying protection to an individual or entity professing that their "sincere religious beliefs" bar placements with an LGBT family, given that the only live issue will be whether the belief is sincerely held. As Justice Alito explained in Burwell, the proper judicial inquiry is whether a government action "imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs." It is not, he emphasized, the job of the courts, or of government in general, to tell individuals "that their beliefs are flawed."
All of this assumes that "[t]here is no compelling reason to require a child placing agency to violate its sincerely held religious beliefs in providing any service, since alternative access to the services is equally available." H.B. 24, § 2(14). But is that, or should it be, the law? Let's assume the Alabama Supreme Court is willing to let the Alabama legislature tell it what are and are not compelling interests, separating itself from the United States Supreme Court, see City of Boerne v. Flores, and quite likely virtually every other state court of last resort. Can it possibly be true that the availability of an alternate source of service relieves a business of the obligation to conduct its affairs in compliance with the law?
That might be the case if the sole frame of reference is Alabama state law, adjudicated in an Alabama state court. The people of that state have refused to bar discrimination on the basis of sexual orientation or gender identity in each of the areas tracked by LGBT advocates. But that was certainly not the case for another Alabama entity, the now-closed Ollie's Barbecue, which was unable to resist the strictures of the Civil Rights Act of 1964 under the theory that African Americans could work and eat at other venues. See Katzenbach v. McClung.
The parallel is not an exact one. Katzenbach involved a statutory claim and my assumption for the limited purposes of this commentary is that the LGBT community now enjoys robust constitutional protection, grounded in "principles of liberty and equality" that "define and protect the rights of gays and lesbians." Obergefell, 135 S. Ct. at 2604. Any such claim requires both intent and a state actor. Which brings us back full circle, to the battle against school segregation. The intent to discriminate is obvious: H.B. 24's entire purpose is to offer a "religious liberty" shield to individuals and entities who wish to do so. The involvement of the state, in turn, lies in its role in making that possible. For these purposes, "[t]he crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power . . . that private action takes hold." NAACP v. Alabama. And, as I noted at the outset, "'[i]t is . . . axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.'" Norwood v. Harrison, (quoting Lee).
I am not a great fan of Employment Division. The Free Exercise Clause protects exercise, not simply belief. The religious liberty statute epidemic of recent years has, however, made me rethink these matters. I find it impossible to believe that one's sexual orientation or gender identity is pertinent in the vast majority of instances in which such judgments are made, situations when personal moral revulsion about certain types of conduct are invoked as the justifications for denying basic civil rights and liberties to a broad class of people. These types of claims are especially troubling when "followers of a particular sect enter into a commercial activity as a matter of choice." United States v. Lee. In such situations, the logic of belief/conduct is especially compelling: "the limits accept[ed] on . . . conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." Individuals whose religions tell them that homosexuality is an abomination are free to believe this. What they cannot do is enlist the support of the government, via either the federal Free Exercise Clause or its state equivalent, to accomplish what Thomas Jefferson condemned in his Letter to the Danbury Baptists: placing their presumed "natural rights in opposition to [their] social duties."
Professor Killenbeck is the Wylie H. Davis Distinguished Professor of Law at the University of Arkansas School of Law. He is the author of numerous books, chapters, articles, and papers, with a special focus on federalism, American constitutional history, and affirmative action and diversity. His book, M'Culloch v. Maryland: Securing a Nation, published in 2006 by the University Press of Kansas, was the first book-length treatment of that important case. Professor Killenbeck is an elected member of the American Law Institute.
Suggested citation: Mark R. Killenbeck, Alabama's Religious Freedom: Natural Rights, Social Duties, JURIST - Academic Commentary, June 22, 2017, http://jurist.org/forum/2017/06/Mark-Killenbeck-alabamas-religious-freedom.php
This article was prepared for publication by Michael Hutter, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at