Calvary v. Herring: The Legal Defense of Discrimination

This past July, Governor Ralph Northam of Virginia signed the Virginia Values Act into law. The bill prevents accommodation, employment, and housing discrimination on the basis of gender identity or sexual orientation. The governor's press release affirms that the pandemic is to blame for increased discrimination but offers no evidence of such a phenomenon. The law rather, at least according to the Alliance Defending Freedom (ADF), is a direct attack on individuals' freedom to exercise their religion in making hiring decisions and the like. Should a Christian photographer choose not to work for a gay couple's wedding, he or she will receive a fine of $100,000. Such steep penalties all but stop discrimination on the basis of gender identity or sexual orientation except for the richest individuals willing to repeatedly pay six-figure sums for each infraction. The ADF filed a suit last month, Calvary v. Herring, arguing that the Virginia Values Act forces citizens to abandon their core beliefs in violation of the Virginia Religious Freedom Restoration Act, of the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment to the Constitution, and of due process.

The ADF puts forth that the Virginia Values Act forces individuals whose religious convictions maintain 1) that marriage is between a man and a woman and 2) that homosexuality and other sexual deviancy is immoral to not only abstain from acting in line with these beliefs but to act in the exact opposite manner. As determined as early as Reynolds v. United States (1879), the government may indeed prevent certain objectionable religious practices such as child sacrifice. How far legislatures may go in preventing behavior, however, depends on the issue at hand. Both federal and state statutes prevent discrimination based on race, religion, sex, etc. but generally not gender identity or sexual orientation. It is evident that objections to these lifestyles by religiously inclined individuals has played a role in developing this precedent.

The more progressive tend to find such objections to be archaic, offensive, and prejudiced as they believe that being non-heterosexual, for example, is not a choice but rather a natural occurrence; discriminating on such grounds is tantamount to discriminating on the basis of any other immutable characteristic. A Christian, Jew, or other person with anti-LGBTQ+ religious beliefs may counter that point by contending that all individuals have sinful desires but that we need not—and should not—act upon each one. It is for that same reason that many religious folks believe that one should not have sexual intercourse before marriage. They indeed would maintain that their discrimination does not constitute contempt prior to investigation but rather compliance with clear-cut instructions from God himself. The question, then, is who has the legal right-of-way?

The U.S. Constitution is the bedrock document that jurists often fall back upon for guidance in cases like these. While federal laws such as the various Civil Rights Acts prevent discrimination based on certain characteristics, the Constitution itself only prevents discrimination on the basis of one's religion. The Free Exercise Clause is particularly of interest in the Calvary v. Herring case as the ADF holds that the ability to exclusively hire individuals who comport with the employers' religious beliefs, for example, is protected by this clause. Their argument is sound. Additionally considering that Virginia is an at-will employment state, nobody is being forced to work for a certain employer. At-will employment typically involves reciprocity in that an employer is not forced to retain any employee, but in passing the Virginia Values Act, that has been metaphorically defenestrated. Per the Establishment Clause, as well as the other laws the ADF suggests that Virginia has violated such as the Virginia Religious Freedom Restoration Act, regardless of any secular complaints individuals may discriminate against whomever they wish on religious grounds. It is not up to the government to determine either the strength or the validity of those convictions.

It is rather audacious of any legal body to affirm what the values of its communities are, especially when there is evidence to the contrary such as in this situation. There is a case to be made that the Virginia Values Act, in its repudiation of religion, establishes its own anti-religion. Imagine a bill that was written in a similar manner but whose content promoted plainly religious values as those of the state. By defining the state's values in contrast to those of followers of Abrahamic religions—not explicitly but in effect—Virginia has established an anti-religion, violating the Establishment Clause. Furthermore, in jurisprudence the two dominant interpretations of that clause are accommodationist and neutral. That is to say that the government may either accommodate all religions in cases where there may be a secular interest to do so, such as in Everson v. Board of Education (1947), or it must treat all religions equally in their observance of laws. Once more, it is Christians, Jews, and Muslims who are largely targeted by this legislation as Buddhists, Sikhs, etc. do not take issue with LGBTQ+ behavior. The law thus is neither accommodationist nor neutral and therefore violates the Establishment Clause in a second sense.

In terms of free exercise, the Virginia Values Act damages religion in placing an undue financial burden on individuals who act in accordance with their faith. In Sherbert v. Verner (1963), the Supreme Court created a test to determine whether an individual's free exercise has been infringed. In the case of a violation of religious practice, such as in Calvary v. Herring, the state must both demonstrate a compelling interest for the infringement and that there is no alternative solution that would not affect the exercise of religion. By passing the Virginia Values Act, the state purported that it had a compelling interest to stop discrimination in employment, housing, etc. against people based on their gender identity or sexual orientation. Was it necessary, however, to besiege religious individuals with six-figure fines every time they violate this law? Often it would seem that these cases are brought up against religious people not because someone cannot find an alternative after being refused a particular service, but to spite those they perceive to be bigoted. A baker in Colorado, for example, was repeatedly harassed for refusing to make cakes for gay weddings. The problem was not that the customers were unable to find a baker who would fulfill their request—it was that they wanted to ruin a man for his religious convictions. Although in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) the Supreme Court ruled in the baker's favor, the assault on his values continues. In our case, it is quite possible that the state of Virginia has enacted this legislation in bad faith, not to prevent discrimination against certain individuals but rather to discriminate against the religious. Given that the Virginia state legislature is Democrat-run and that fervently religious people tend to lean Republican, it may even be probable. Slamming people with an $100,000 penalty, however, seems to be overkill to say the least. Regardless of the legislators' true intent, however, a strong case can be made that the state's interest is not compelling enough to constitute a violation of religious free exercise, ergo, the financial burden.

Ultimately, the Circuit Court handling Calvary v. Herring should rule in favor of the plaintiffs. The evidence that the Virginia Values Act violates the Establishment Clause is solid, and a reasonable argument could also be made that it violates the Free Exercise Clause. Despite any moral opposition to these religious beliefs, the law is clear in its protection of them.