Illinois needs protection for religious discrimination


By Brad Barber

If you can remember any grade school history lessons at all, you probably recall the Jim Crow laws that segregated the South. These laws promoted the “Whites Only” or “Blacks in Back” signs outside businesses, and have become synonymous with inequality and denial of civil rights.

The opponents of Arizona’s SB 1062, a religious freedom protection law amendment, have used the negative connotations of the Jim Crow laws to scare the public from enacting needed safeguards of religious liberties. Illinois should disregard these misconceptions and take action to bring about similar reforms. 

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Illinois made a bold statement last year when it hastily granted legal marriage to gay couples. However, Illinois is putting the religious rights of its citizens in jeopardy by failing to pass reforms to its discrimination laws in the wake of this change. 

Illinois needs a bill similar to Arizona’s SB 1062 to adequately protect all of its citizens from infringement of freedom of religion. Freedom of religion is more than freedom to believe, but freedom to act in pursuance of these beliefs. 

SB 1062 was a proposed amendment to an existing law that would have extended to all persons the protections against state action (including discrimination lawsuits) Arizona currently offers to religious institutions. The amendment was passed by the Arizona legislature in response to recent lawsuits in other states against Christian businesses that have refused services to gay couples for the couples’ wedding ceremonies. However, Governor Jan Brewer vetoed the bill on Feb. 26 due to concerns of unintended consequences. 

The biggest “consequence” was the misconception that this amendment would create a mass of state-sponsored discrimination that would divide the state as Jim Crow laws did. Specifically, opponents claimed this law could make it so that individuals could refuse any service to anyone based on religious beliefs, such as homosexual couples. 

SB 1062, and any similar laws, would not create another “separate but equal” state of businesses defining what groups they will sell to, and it probably will not increase the amount of legal discrimination in any industries but the wedding and sexual industries. When legislatures create laws with more than one interpretation, they rely on existing case law and future judicial decisions to properly declare the meaning of the amendment, and keep it in line with the legislative intent. The legislative intent is not to allow for refusal of service in everyday business, but in providing service that would violate a religious belief. 

Denying every service to a certain group cannot be consistent with religious beliefs because if you cannot sell sandwiches to Group A without any other reason other than membership in Group A, the religion would not allow selling sandwiches at all.

The amendment provided a defense to discrimination, but requires the individual accused of discriminating to prove that (1) the action was because of a religious belief (2) he/she is sincere in the religious belief and (3) the lawsuit would place a substantial burden on the religious belief. 

These requirements present a safeguard to any expansive definitions given to the amendment because religious beliefs held by one individual must be consistent with all others held. Thus, any individual acting on a religious belief that also believes in redemption (such as Christianity, the main victim of the current lawsuits) cannot also hold that committing a religious violation, no matter how many times, is permanent disbarment from the religion.

A main example for opponents was Christian restaurants denying all service to gay individuals. However, properly applying the requirements of the defense shows how this is untrue. 

A Christian owner could not deny all service, on any ordinary day, because the first requirement could not be proved. Refusing regular service would require a religious belief that is opposed to the mere existence of gay individuals and provides no way for such individuals to ever be redeemed. With Christianity, this is not so, for anyone can be redeemed. 

However, he or she could prevail for refusal to cater a gay wedding. So long as homosexual weddings is counter to his or her interpretation of Christianity, he or she could claim that participating in such an event would be in direct violation of his or her religious view. Such a belief is not incompatible with redemption and would likely stand up in court.

This example applies solely to Christianity. Each interpretation of religion would have to be examined to insure that it would not provide the mass discrimination that opponents fear. The examination is and would be the responsibility of court systems if such a law were passed. 

Current Illinois law presents the same religious freedom pitfalls that Arizona’s does.There is no legal defense to discrimination lawsuits when the individual feels compelled to refuse service because of religious beliefs. If the individual does not refuse service, then he or she could be aiding or abetting a violation of his or her religious code, which can be just as bad. 

Illinois is forcing individuals to choose between religion and civil liability. Without a law such as SB 1062, Illinois is and will continue to expose individual’s religious rights to state infringement.

Brad is a graduate student in Law. He can be reached at [email protected] Follow him on Twitter @b_rad_barber.