The Test for a Bigotry Exemption under State “Religious Freedom” Statutes

Dear Virtual Editor,

Recall that I promised, with only a few exceptions, to devote 2016 to an effort to reduce the toll of war on civilians.  Today is one of those few exceptions. Fear not, the story of why the U.S. cannot “win” in the Middle East will continue anon.  But the recent spate of state “ Religious Freedom” legislation granting merchants and others the right to deny their products and services to their LBGT brothers and sisters requires attention.




These laws leave out an essential process. I want to help these noble discriminators. I will describe a requirement that is necessary to make these statutes work and the process for deciding if the requirement has been met.  I trust that the brilliant cadre of state representatives who enacted “Religious Freedom” laws will put it in place forthwith.

It is futile to point out to these legislative guardians of Godliness that everyone knows these laws are nothing more than the last mean-spirited gasp of a dying old order.  So let’s try to help out the poor state representatives.

It is clear that the laws must have a way to determine who gets to discriminate. Fortunately, the U.S. already has a perfect model for such a process. It is the test for exemption from the military draft based on conscientious objection. I have extensive experience with that process, and I can see that it will do splendidly.


The State Laws

Let’s look at two typical “religious freedom” statutes.   Of course, they do not purport to allow just anyone to discriminate for any reason. Justice Thomas may be working on that, but it is not yet permitted.  And at present, “I just hate fags” does not qualify one for exemption from public accommodation laws.




So, some folks will have to follow the law that applies to almost all of us, but some will not.  How to determine who is in which group?  Who qualifies to discriminate? What is the test for exemption from a law of general application?  The “religious freedom” laws have no mechanism for answering these questions. But the Military Selective Service Act does.




Incidentally, these state statutes are an outgrowth of a Supreme Court case, Burwell v. Hobby Lobby Stores, that not only came up with the bizarre finding that commercial corporations had religious beliefs but ruled that closely held corporations could discriminate based on those beliefs. Even this decision did not rest on the free exercise clause of the First Amendment, but that distinction is a bit too much for some of the aforementioned state lawmakers.  Hobby Lobby could be seen as a transgender case, clarifying the rights of artificial persons who were human before reassignment.

Indiana – Allows individuals and companies to assert as a defense in a legal proceeding that their exercise of religious freedom has been, is or is likely to be substantially burdened by complying with the law that the rest of us must follow.

Obviously, several questions must be answered.  Does the person who is discriminating have religious beliefs?  Does he/she exercise them? How?  Would obeying the general law burden that exercise?  If so, would compliance be a slight burden or a substantial burden? Failure at any of these points would deny a person the exemption.

It is immediately apparent that the personal life of the discriminating party must be examined closely before the law can apply.  And why go through the time and expense of sorting all this out through evidence in a legal proceeding?  What is needed is a process whereby potential discriminators can be assured in advance of their entitlement to ignore generally applicable laws.




Mississippi – Ah, Mississippi.  Smarter than their Yankee cousins, legislators did not require a legal proceeding. The recently enacted law pre-emptively forbids government from penalizing an individual or business for acting according to sincerely held religious beliefs or moral convictions. But, of course, the same questions arise.  Note that the requirement of sincerity that is implicit in Indiana is explicit in Mississippi.  And sincerity does not refer to a sincere desire to discriminate. It refers to the sincerity of the religious belief. A searching inquiry into personal life is plainly required here also.

We need not dwell on the remainder of Miss. HB 1523, but perhaps should note that it includes a stunning biological finding, no doubt supported by scientific evidence found somewhere in the legislative history of the act. After pronouncing that marriage is only for a male to a female, and sex is reserved for marriage, the act goes on to reveal that “male” and “female” refer to immutable biological sex as determined by anatomy and genetics at time of birth. With a stroke, these brilliant lawmakers have solved one aspect of the issue:  There is no such thing as a transgendered person!


The Answer!  Test for Exemption from the Selective Service Act

It is sometimes forgotten that the draft is alive well in the U.S.  All men ages 18-25 are required to register to be called up.  There are numerous penalties for failing to participate. They include bars to student financial aid, obtaining a security clearance, participating in job training programs and, oh yes, 5 years in prison and a $250,000 fine.

The burden is on an applicant for exemption from the draft to demonstrate that his objection to war is prompted by deeply held moral, ethical or religious beliefs that are sincerely held. 




So, there is no need to reinvent the wheel here.  The test for determining who gets out of a requirement to kill people is virtually identical to the one now required to determine who gets to refuse to sell flowers to gay people. And there is an administrative model to follow.

While the active draft was in force and the U.S. was forcing people of color without much formal education to die in a senseless war in Vietnam, I represented several applicants for draft exemption based on conscientious objection.  I can tell you that the inquiry into the personal life of the applicant relevant to the elements of the test for exemption was quite thorough. And it was mostly focused on religion.  The Supreme Court required the part about moral beliefs held with the same fervor as religion, but the draft boards were mainly interested in God stuff.

In sum, there is a pre-existing body of government procedure for working out all those tough questions about sincerity, substantial versus minimal burdens, etc. Fair-minded state legislatures adopting it can be assured that nobody gets an entitlement to discriminate who does not qualify under the law.

You’re Welcome (Sincerely)

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