'Religious liberty is a license to discriminate,' answered with the law

"Religious liberty is a license to discriminate." Say it with a straight face and it sounds like a conclusion. It is a slogan, and like most slogans it works by hiding the part of the story that would spoil it.

The part it hides is the law. Not the law as the sloganeers imagine it, a blank check that any believer can cash against any neighbor, but the law as it is written and as courts have applied it: a set of tests, with burdens of proof, with statutory text, and with a long list of religious claimants who lost. Let us read it the way we would read any statute, define the terms, state the opposing argument at its strongest, and then answer it point by point.

Defining terms

Three terms do the work in this debate, and the slogan blurs all of them.

Religious liberty in American law means two things. The Free Exercise Clause of the First Amendment protects the right to believe and to act on belief. The Establishment Clause keeps government from setting up a church. Beyond the Constitution, statutes protect religious exercise further, most importantly the Religious Freedom Restoration Act of 1993, known as RFRA, and its state counterparts.

An exemption is a rule that says a general law does not apply to a particular person or institution under particular conditions. An exemption is not a repeal. The law still binds everyone else.

Discrimination is a word with a legal meaning and an everyday meaning, and the slogan trades on the gap. In law, a statute like Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on specified grounds. In ordinary speech, "discriminate" simply means to distinguish between people, which every church does when it hires a pastor and not a plumber. The question is never whether anyone is distinguished from anyone else. It is which distinctions the law allows and who decides.

The opposing argument at its strongest

The best version of the objection deserves its due, and it is not a stupid one.

It runs like this. A society that lets people opt out of general laws on grounds of conscience invites abuse. If a believer can refuse to follow a rule because of faith, then the people who needed the rule, employees, customers, patients, tenants, bear the cost. Religious liberty is a right of the claimant, but exemptions are paid for by someone else. Justice Ruth Bader Ginsburg made a version of this point in her dissent in Burwell v. Hobby Lobby in 2014, warning about the breadth of the claim and about its effect on employees who did not share their employer's beliefs. The Supreme Court itself had recognized the problem: in Estate of Thornton v. Caldor in 1985, it struck down a Connecticut law that gave every employee an absolute right not to work on his chosen Sabbath, because the law gave no weight to the employer or to the other employees.

And there is the history. In 1968, in Newman v. Piggie Park Enterprises, the owner of a South Carolina barbecue chain argued that serving Black customers violated his religious beliefs. The Supreme Court dismissed the defense as patently frivolous. A civil-rights law that bent to every claim of conscience would have been worthless in the South.

That is the argument at its strongest. It has two real insights: third parties matter, and general laws with broad exemptions can be hollowed out. Now the answer.

The answer, in numbered points

1. RFRA is a balancing test, not a license.
2. The test puts the burden on the claimant first.
3. Title VII's religious exemption is narrow and old.
4. The Court has weighed third parties repeatedly, and claimants have lost.
5. The slogan treats every claim as the worst claim.
6. The alternative is a state that decides which beliefs count.

Take them in order.

One: RFRA is a balancing test

Congress passed RFRA in 1993. It passed the House on a voice vote and the Senate by a vote of 97 to 3, and President Clinton signed it on November 16, 1993. It was a bipartisan reaction to Employment Division v. Smith (1990), where the Court had held that a neutral and generally applicable law does not violate the Free Exercise Clause even when it burdens a religious practice. The case is covered in Employment Division v. Smith and the Scalia rule that still splits conservatives.

RFRA restored a test. Under it, the government may not "substantially burden a person's exercise of religion" even by a rule of general applicability, unless it demonstrates that applying the burden to that person furthers a compelling governmental interest and is "the least restrictive means of furthering that compelling governmental interest." Read the structure. The claimant must first show a substantial burden on a sincere religious exercise. The government then has to show a compelling interest and the narrowest means. This is the strictest test in constitutional law, and courts apply it, but it is a test with two sides. The government can win, and often does.

The Court held in City of Boerne v. Flores (1997) that Congress could not apply RFRA to the states, so RFRA governs the federal government, while many states passed their own versions. What a state RFRA does and does not do, in twelve plain questions walks through the questions families ask about those laws.

Two: the burden falls on the claimant first

A claimant cannot simply announce an objection. A court asks whether the belief is sincere, whether the government's action substantially burdens it, and then whether the government has a compelling reason. In Holt v. Hobbs (2015), the Court ruled unanimously for a Muslim prisoner in Arkansas who wanted to grow a half-inch beard, because the prison could not show that the ban was the least restrictive way to protect security. Nobody was harmed by a half-inch beard, and the prison, which already allowed other grooming exceptions, had not shown otherwise. The story is told in A Muslim inmate's half-inch beard and the 9-0 ruling against Arkansas. The same test, applied to a request that really did harm others, comes out differently, which is the point.

Three: Title VII's exemption is narrow and old

The slogan is often aimed at employment, so look at the statute. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. From the beginning it included an exemption, Section 702, allowing religious organizations to employ individuals of a particular religion. Congress in 1972 amended the section to extend the exemption from the organization's "religious activities" to all of its activities.

Think about what that means. A synagogue may prefer to hire a Jewish administrator. A Catholic parish may prefer a Catholic music director. A Baptist seminary need not hire an atheist to teach theology. This is not an attack on anyone; it is the ordinary right of a community of faith to be led by its own members, and it is the same right a political party has to staff its headquarters with partisans. The exemption covers religious organizations, not every business owned by a believer, and it permits preference on grounds of religion, not exemption from the statute's bans on race or sex discrimination.

In Corporation of the Presiding Bishop v. Amos (1987), all nine Justices agreed that the exemption could be applied to a building engineer at a gymnasium run by a church-affiliated nonprofit, who was dismissed because he did not qualify for a temple recommendation. The Court reasoned that it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The government has a legitimate interest in letting religious communities define their own mission. Notice who the exemption protects: not the strong, but the small religious communities that would otherwise have to hire people who do not share the faith the organization exists to live out. The ministerial exception, recognized in Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), another unanimous decision, rests on the same reasoning for those who teach the faith.

Four: claimants have lost, and third parties have counted

If religious liberty were a license, claimants would win. They do not always. A short and incomplete list:

• Reynolds v. United States (1879) rejected a Mormon's defense to a polygamy charge.
• Braunfeld v. Brown (1961) upheld Pennsylvania's Sunday closing law against Orthodox Jewish merchants, a case that appears in Sunday closing laws, Orthodox Jewish merchants and the 1961 Sabbath rulings.
• United States v. Lee (1982) required an Amish employer to pay Social Security taxes for his workers.
• Bob Jones University v. United States (1983) upheld the IRS's denial of tax-exempt status to a university with a racially discriminatory policy, even though the policy stemmed from the school's religious beliefs. The case is discussed in Bob Jones University, the IRS and the question it left every church.
• Newman v. Piggie Park Enterprises (1968), as we saw, rejected a religious defense to a public-accommodations law.
• Estate of Thornton v. Caldor (1985) struck down an absolute Sabbath right because it ignored the employer and coworkers.
• Goldman v. Weinberger (1986) rejected an Air Force officer's request to wear a yarmulke on duty, though Congress later passed a statute allowing religious apparel in the military.

That is a record of a legal system that weighs. The Court said as much in Cutter v. Wilkinson (2005), upholding a federal law protecting prisoners' religious exercise: an accommodation must be measured so that it does not override other significant interests, and courts must take account of the burdens it would impose on third parties. And in Hobby Lobby itself, the Court pointed to a less restrictive alternative the government already used for religious nonprofits and said that the employees would continue to receive coverage through that route. The government lost not because third parties did not matter, but because it had not shown it had used the least restrictive means.

The recent cases follow the same pattern. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court ruled for a baker on a narrow ground, that the state commission had shown hostility to his religion. In 303 Creative v. Elenis (2023), the ruling was about speech: a state may not compel a designer to create an expressive message she opposes. Neither case held that a business may refuse to serve a customer because of who he is, and the Court in 303 Creative described its holding as a limit on compelled speech, not a general exemption from public-accommodations law. In Fulton v. City of Philadelphia (2021) the Court ruled for a Catholic foster agency, unanimously, on the ground that the city's contracting scheme allowed individualized exceptions and so was not neutral and generally applicable.

Five: the slogan treats every claim as the worst claim

Here is the rhetorical trick. The sloganeer picks the least sympathetic imaginable claim, a refusal to serve a customer on account of race, and treats it as the typical case. But in the actual docket the claimants are a Muslim prisoner with a half-inch beard, a Santeria church in Florida whose ritual sacrifice was singled out for a ban, Catholic charities in Wisconsin and Philadelphia, Sabbath-keeping workers, a church that wanted to use a sacramental tea, an Amish family. Look at them in the files, in A Santeria church, a Florida city and the unanimous ruling for minority faiths and Wisconsin told Catholic Charities it was not religious enough and lost 9-0. These are mostly small, unpopular communities asking not to be crushed by a law that never considered them. A principle that protects those claimants is worth having, and the test that protects them is the same test that rejects Piggie Park.

Six: the alternative is a state that decides which beliefs count

Imagine the slogan taken seriously. If the law gave no weight to religious objections, then someone in government would decide which objections were real and important. That is a bad job for any official. During the pandemic, several states capped attendance at houses of worship while comparable secular businesses stayed open, and the Court, in cases covered in casinos open, churches capped, and the pandemic rulings that restored worship, said that equal treatment was required. A government that holds the power to rank beliefs will rank them according to who has power. The history of persecution is the history of that ranking. And that is the argument the Founders made in The conscience clause Madison wrote for the Bill of Rights and lost and in two schoolgirls, a flag salute and the 1943 ruling that protected conscience.

What the argument gets right

A fair-minded person concedes something. The critics are right that exemptions can impose costs on others, and that a bad exemption is a bad law. They are right that some claims in history, the Piggie Park defense most clearly, have been made in bad faith or in defense of injustice, and that courts were right to reject them. And they are right that there is a real debate about where the line sits when an employer's belief collides with an employee's benefits.

That debate is a debate about balancing, and it is exactly what RFRA's test is built to handle, case by case, with evidence. What the slogan does is decline to have the debate. It says the answer is always "discrimination," so no test is needed. The law's answer is that a free society weighs each claim, and sometimes it lets the believer win and sometimes it does not.

The case in brief

1. RFRA requires the government to show a compelling interest and the least restrictive means before it burdens sincere religious exercise, and the government can and does win.
2. Title VII's religious-organization exemption dates to 1964 and was widened in 1972; all nine Justices upheld it in Amos (1987), and it protects a faith community's right to be led by its own members.
3. Courts have weighed third parties repeatedly, from Caldor to Cutter to Hobby Lobby, and religious claimants have lost many cases, from Reynolds to Piggie Park to Bob Jones.
4. The slogan picks the worst imaginable claim and treats it as typical, when the real docket is mostly small and unpopular communities.
5. The alternative to balancing is a government that ranks beliefs, and history shows who suffers under that.

What you can do: read your own state's religious-freedom statute, if it has one, on your legislature's website, and compare its test with the federal RFRA's language.