46th Annual Donald A. Giannella Memorial Lecture: Religious Liberty and Nondiscrimination Law
- Author(s):
- Helen M. Alvaré
- Posted:
- 3-2025
- Legal Studies #:
- 25-06
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
Some state and lower federal courts hold that religious vendors refusing to cooperate with the conduct of persons in protected classes are instead engaged in status discrimination in violation of nondiscrimination laws. These opinions often assert that a string of United States Supreme Court decisions requires them to conflate status and conduct. This problem arises with regularity in cases involving religious objections to cohabitation and same-sex weddings. But such conflating not only misreads the texts and legislative histories of the relevant nondiscrimination statutes; it also misreads the Supreme Court opinions upon which it relies, and neglects the only guidelines the Court has articulated regarding conflating status and conduct. It furthermore violates the religious freedom of the defendants for three reasons. It engages in an unconstitutional analysis of whether believers' distinguishing between status and conduct is implausible, impossible, or untrue. It systematically treats the class of religious persons worse than other protected classes. And it refuses to recognize religious institutions' autonomy to pursue their missions by means of personnel choices.
Ordinarily, religious freedom claims in nondiscrimination cases are considered only after a state has found a believer liable for status discrimination, and the objector then raises a right of free exercise. But this Article claims that religious freedom problems arise before this stage of the litigation, when courts are weighing whether to conflate status and conduct to determine if a status nondiscrimination law is possibly violated.