Date of this Version
Notre Dame Law Review (1994) 69(3): 393-.
Religions that make peace with the spirit of the age have little to fear from the rulers of the day. But believers who refuse to adapt their religious practices to the Zeitgeist are vulnerable under Smith, unless the Court decides to protect religious pluralism by giving full scope to Smith's exceptions.
I have tried to show that homosexual rights legislation imposes heavy costs on the right of employers and landlords to take character into account when making business decisions. These costs are particularly heavy when borne by religiously-motivated persons, who are declared outlaws merely for trying to obey God in the conduct of their businesses. As Professor Laurence Tribe once stated in a different context, "the power to reinforce one type of relationship must not extend to an authority to stamp out another."
Homosexuals are not similarly situated to racial and ethnic minorities and other groups protected by antidiscrimination laws, both because homosexuality remains a matter of moral controversy and because homosexuals have not been economically impoverished by pervasive and invidious discrimination. Therefore, the effect of homosexual rights legislation is primarily symbolic-the values of the sexual revolution are codified and legitimized (and inconsistent world views are correspondingly marginalized). I believe the costs of homosexual rights laws are too high, and I see no benefit even remotely worth the cost. These laws should not be passed and, where passed already, they should be repealed.
I have also tried to show that even under Smith (as properly understood) most homosexual. rights laws are unconstitutional when enforced against employers and landlords wlho make distinctions on the basis of religious beliefs concerning sexual morality. Typical homosexual rights laws are neither neutral nor generally applicable. And, at least on occasion, these laws burden Smith-hybrid rights. Therefore, they must undergo the most rigorous of scrutiny when challenged by religiously-motivated actors. These laws cannot pass strict scrutiny, because they are not necessary means of achieving compelling governmental ends.
If I am wrong and the Court allows homosexual rights laws to be enforced against religiously-motivated actors, it could be the beginning of the end for religious pluralism in America. Religions that are willing to follow the advice of MTV and "free their minds" by accepting homosexuality, bisexuality, and cohabitation as lifestyles that are pleasing to God will find favor with Caesar. However, those religions that stubbornly cling to old fashioned beliefs about sexual morality and marriage between husband and wife will thrive once again in the catacombs.