Last week, federal Judge Justin Walker issued a decision blocking the City of Louisville from enforcing its nondiscrimination law against a wedding photographer who refuses to service same-sex couples. According to Walker the issue is rather simple: The photographer’s work “is art. Art is speech” and “[t]he government can’t compel speech when it violates the speaker’s religious or political principles.” If applied evenly, such a standard probably sounds fair to a lot of Americans. I mean, I would personally never discriminate against same-sex couples in such a way and view any reason to do so (including religious reasons), as vile and despicable. But if everyone was indeed protected against government compulsion of speech that violated their religious or political principles, that would at least be fair and reflective of a society committed to pluralism. Except that is not the system we currently have. The current system not only grants extraordinary favor to religion in a way not yet extended to nonbelievers, but judicial actors often treat nonbeliever claims with general disfavor and open contempt.
First, let’s examine the claim that government grants extraordinary preference for religion that has yet to be extended to nonbelievers by looking at the Religious Freedom Restoration Act of 1993 (RFRA). Recently, Justice Neil Gorsuch called RFRA a “super statute” that can displace “the normal operation of other federal laws” for religious belief. Perhaps the most well-known and controversial Supreme Court decision regarding RFRA is Burwell v. Hobby Lobby Store, Inc. In Hobby Lobby, the Court held that RFRA prohibited the Department of Health and Human Services (HHS) from enforcing the Affordable Care Act’s contraceptive care mandate on “three closely held for-profit corporations that have sincere Christian beliefs.”
It is important to recognize that the plaintiff’s claimed harm in Hobby Lobby was attenuated by the decision-making of multiple third parties including licensed physicians and employees (more on this point below). Nevertheless, the Court held that under RFRA’s standard, such attenuation did not matter and neither did the reasonableness of the religious belief. All that matters, the Court said, is whether a burden is being place on religious belief and whether that belief reflects “an honest conviction.” Here is the crux of the Court’s reasoning in Hobby Lobby:
“The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.”
It is also important to recognize that over the years RFRA has been applied to all religions fairly equally, not just Christians. Here is the rub though: It is not clear whether RFRA applies to nonbelievers. Indeed, to my knowledge, every time a nonbeliever has tried to make an RFRA claim, the courts have rejected it. Often using a very different standard for nonbeliever plaintiffs than the one applied to believers in Hobby Lobby.
For example, it would seem obvious that by forcing nonbelievers to use currency that displays the phrase “In God We Trust” that government is arrogating the authority to provide a binding national answer to a deeply religious and philosophical question, right? Is it not plain that the government is in effect telling nonbelievers (who do not believe in, much less trust a god) that their beliefs are flawed? But guess what happened when a nonbeliever tried to assert an RFRA claim? It was rejected. I cannot help but think that if Congress ever tries to put the phrase “We Trust In No God,” on our currency, or “In Contraception Care We Trust,” or better yet, “In Gay Marriage We Trust” suddenly we will see some “evolving” analysis on whether such mottos amount to government impermissibly telling plaintiffs their beliefs are flawed.
In any case, if nonbelievers cannot invoke RFRA in the same way the religious plaintiffs in Hobby Lobby did, nonbeliever free-conscience claims will be left to a far less favorable standard under current Establishment Clause doctrine. To demonstrate how the RFRA standard is far more generous to plaintiffs than current Establishment Clause doctrine, let’s compare the standard used to decide a recent Establishment Clause case with the standard used in Hobby Lobby.
In both cases, the government regulatory structure at issue utilized the same basic functions, albeit for very different services. In Hobby Lobby the service government was mandating corporations provide financial coverage for was comprehensive health care plans. In the Establishment Clause case, the compelled support was for private education. Perhaps the most important similarity between the two cases, however, is that government was not choosing for the plaintiffs as to what form the compelled service must take. In each case, the decision as to form and substance was left to the complete discretion of private third parties.
Yet, despite these remarkable similarities in the government regulatory scheme in each case, the Court came to the diametrically opposed conclusions in regards to whether the schemes violated free conscience. As noted above, although the existence of third-party attenuation does not effect RFRA claims, it is dispositive to any Establishment Clause claim. Accordingly, if RFRA is not applied to nonbelievers, government would in effect be granting free-conscience objections made by religious citizens a preferred and demonstrably easier standard to satisfy. Which is why in order for religious liberty to be considered equal, nonbelievers must be granted the same free-conscience protections afforded to believers under the RFRA standard.
Of course, with a hostile judiciary, nonbelievers should expect significant resistance to courts offering equal treatment under RFRA. I use the term hostile to describe the judiciary for several reasons. First, despite the fact that as our population has increased in nonbelief, become more urbanized, and yes, more open sexually, our country has only gotten safer and safer. The current attorney general will go to our nation’s law schools and tell students that nonbelievers, collectively, are directly responsible for all social ills. I use the term hostile because federal courts are now telling nonbelievers they can be prohibited from addressing their own state legislatures with opening messages of unity and peace. Or that nonbelievers cannot perform private wedding ceremonies, even for nonbelieving couples.
If nonbelievers overcome this judicial hostility, the consequences of the RFRA standard being extended to the sincere convictions of nonbelievers would be pronounced. Nonbelief is literally defined by the sincere conviction not to support, subscribe, or to adhere to any religion. I submit there is no lack of Americans who hold the sincere conviction that being compelled by government (even through the decision-making of third parties) to support religious institutions that label their marriages as abominations, or whose members refuse to serve them in commerce, is immoral. The only question is when will our courts begin to recognize such sincere convictions with the same respect they afford religious convictions.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
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