Connecticut Is Not IndianaPosted: March 30, 2015
Last week Indiana enacted a controversial law that many believe is intended to allow individuals, particularly for-profit business owners, to discriminate against persons who identify as LGBT, on the ground that providing services to such persons may burden the provider’s religious convictions. Today, Governor Dannel P. Malloy announced that he will sign an executive order banning state-funded travel to Indiana. The governor stated, “When new laws turn back the clock on progress, we can’t sit idly by. We are sending a message that discrimination won’t be tolerated.”
In response to the governor’s announcement, some are arguing that Connecticut is being hypocritical because it has its own law, enacted in 1993, that is (allegedly) no different from, or is even worse than, the new Indiana law. (Click here and here for examples of such arguments.)
Are those arguments correct? I think not. Nothing in the text or history of the Connecticut law suggests that the General Assembly intended to allow individuals or business owners to discriminate against members of the LGBT community based on religious beliefs.
To appreciate the fallacy of the “hypocrisy” argument, we need to go back to the year 1990 A.D., the year in which the United States Supreme Court decided an important First Amendment/freedom of religion case called Employment Division, Dept. of Human Resources of Oregon v. Smith. That case concerned a Native American’s claim that, given the First Amendment’s protection for freedom of religion, his desire to use peyote in a religious ceremony should trump a state criminal law prohibiting the use of peyote for any purpose. The Supreme Court ultimately concluded that the First Amendment did not protect the religious or sacramental use of peyote. But, what is more important is why the court reached that conclusion.
Historically, the Supreme Court had held that all governmental actions that burdened the free exercise of religion, even incidentally, could only be upheld if they furthered a “compelling state interest.” In non-legal jargon, this test–known as “strict scrutiny“–requires a state to justify a law that infringes on a constitutional right with a really, really, really, really good reason. (By contrast, most laws are subject only to what is known as “rational basis review,” which only requires a state to articulate any arguably rational reason for the law.) The Supreme Court explained why strict scrutiny was historically required in cases involving freedom of religion:
It is basic that the showing merely of a rational relationship to some colorable state interest would [not] suffice; in this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation [on religious freedom]. See Sherbert v. Berner (1963).
In Smith, however, a divided Supreme Court rejected its own longstanding precedent and held that, going forward, strict scrutiny would no longer be applied to laws of general applicability, such as criminal laws, that incidentally burdened religious practices. Instead, Justice Scalia explained that such laws would be subject only to rational basis review. Under that deferential standard, the high court held that a criminal law prohibiting the use of peyote generally did not unconstitutionally infringe on a Native American’s religious beliefs, which included using peyote during religious ceremonies.
Congress reacted strongly to the Smith decision and passed a law known as the Religious Freedom Restoration Act of 1993. Congress’s stated purpose in passing the law was to restore the “compelling state interest/strict scrutiny” test that the Supreme Court had rejected in the Smith decision. That same year Connecticut passed a similar law for the same purpose, General Statutes § 52-571b. Indeed, during debates on the bill that became the law, then State Senator (now Attorney General) George Jepsen remarked:
To be absolutely clear, this does not–this bill does not expand, contract or alter the ability of a claimant to obtain relief in a manner consistent with the Supreme Court’s free exercise jurisprudence under the compelling interest test prior to the Smith case.
See Rweyemamu v. CHRO, 98 Conn.App. 646 (2006) (quoting remarks of Sen. Jepsen).
Thus, the question is this: in enacting General Statutes § 52-571b, did the Connecticut General Assembly intend to make it lawful for an individual or business owner to discriminate against a LGBT customer because of a religiously based objection to serving such a customer? I think the legislative history of the statute is clear on this issue: NO. In contrast, making such discrimination lawful appears to be the precise motivating purpose behind the Indiana law.
So, whatever one may think of Governor Malloy’s response to the Indiana law, neither he nor Connecticut in general are being hypocritical.
UPDATE: I neglected to note that in 1991, Connecticut became one of only a few states at the time to enact comprehensive anti-discrimination legislation, which forbade discrimination on the basis of gender (including sexual orientation) in employment, housing, public accommodations and credit. See General Statutes § 46a-81a et seq. The notion that only two years later the General Assembly would have passed a law for the purpose of allowing discrimination against the LGBT community based on the religious convictions of employers, landlords, owners of public accommodations, etc., is quite far-fetched.
UPDATE (3/31): Colin McEnroe has an excellent post on his blog comparing and contrasting the language of Connecticut’s and Indiana’s laws. He raises a few questions, which I will address shortly in a new post.