Acton Institute Powerblog

Richard Epstein on conflict between anti-discrimination laws and religious freedom

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Late last month, a federal judge declared Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act” (HB 1523) unconstitutional. In response, legal scholar and libertarian Richard Epstein discussed issues of religious freedom and anti-discrimination initiatives on the latest episode of the Hoover Institution’s podcast, The Libertarian.

The Mississippi law was written to protect those with specific religious objections on issues of marriage, sexual acts outside of marriage, and gender. The law would give people with the specified views the state-protected right to act on these views in business dealings and in roles as administrators. Anti-discrimination LGBT groups argued that the law allows unconstitutional discrimination, and the judge agreed, striking down the law under the Equal Protection Clause. The judge also ruled that the law violated the Establishment Clause because it favored some religious beliefs over others. The case represents one of many recent clashes between freedom of conscience and anti-discrimination laws.

Epstein rejects the judge’s ruling as both legally misguided and finds error in the underlying understanding of tolerance.

In determining the proper use of anti-discrimination laws, he claims that they are properly applied only to very narrow situations, mostly in the cases of monopolies of utilities, and should not be applied to competitive markets. Considering that most of the businesses punished under anti-discrimination laws operate in markets where there are several other businesses or easy entry and in non-essential services, there is no reason that the government need involve itself in policing the choices of the business owners. Furthermore, he criticizes courts dealing with these issues in the abstract, instead of ruling based on specific instances of lack of access to service.

Epstein favors allowing religious business owners or actors to act using their own discretion and to absorb the reputational stigma that may come from refusing services based on religious beliefs. He holds that people are entitled to act in ways that he finds offensive, and affirms this as the true definition of tolerance, rather than the new definition that paints tolerance as a compulsion to act according to the wants of others against sincerely held beliefs. He worries that this new definition of tolerance, if it persists in the legal system, will ultimately destroy religious liberty in business:

All religious people will be forced through a terrible choice of either giving up their livelihoods on the one hand or deciding to do something against conscience. This strikes me as being totally senseless, not because I’m a man of deep religious beliefs, but because I’m trying to respect the beliefs of other groups, which … are entitled to run their own lives and their own organizations in their own way.

When asked if progressive legal reasoning could reasonably extend to churches losing tax exempt status or being required to perform marriages in conflict with their religious beliefs in the future, Epstein replies that it is quite possible.

Also presented in the podcast is an explanation of the flaws in progressive legal reasoning, especially on the interpretation of coercion, compelling state interest, and rational basis, and an evaluation of the pertinent legal precedent, including Employment Division v. Smith, the federal Religious Freedom Restoration Act of 1993, and the Obergefell decision.

Epstein also wrote an evaluation of the issue earlier last week, which you can read here. You can listen to the podcast through soundcloud:

Mimi Teixeira

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