The distinction between belief and action

Courts have to decide how to reconcile laws that appear to be in conflict with each other. In the recent arguments about an executive order restricting immigration, courts were confronted with conflicts between laws that grant travel rights to legal permanent residents and laws that give the president significant discretion to handle immigration in the name of national security.

In resolving such issues, courts always try to reconcile laws, if possible, to avoid direct conflicts. Sometimes it's possible to realize that no actual conflict exists. One aspect of the recent executive order argument was the claim of some litigants that the travel ban was based on religious differences, and thus violated the First Amendment. Yet the executive order did not restrict travel on the basis of religion. The evidence for the ban being religious discrimination was based on comments by political allies of the president about their belief about the meaning and intent of the ban.

Courts hearing arguments could distinguish what the order actually said from what its supporters wanted it to mean, and what its critics believed it meant. The courts' job is not to enforce the desires of litigants, but the law. What the law actually says is more important than what its supporters or opponents interpret it to mean.

Historically, one reconciliation between ostensibly conflicting laws has been grounded in a legal distinction between belief and action. Thus, it is entirely legal to believe that various races should be segregated from each other. But someone who holds such a belief cannot open a restaurant or other business and practice segregation in dealing with his customers.

But this traditional, historic model has been under reconsideration for several years. In response to women's health issues and the increasing recognition of LBGTQ rights, many states have passed "religious freedom restoration" acts. These attempt to protect conduct based on assertedly religious beliefs, when that conduct explicitly discriminates against people. So the laws are intended to change traditional Frist Amendment law from protection of belief to protection of behavior.

The Burwell v. Hobby Lobby opinion ratified this trend by granting corporations the right to ignore laws that conflict with "sincere" corporate religious belief. It is possible to hypothesize individual actions, and endless numbers of business activities, that could fall within the exception created by Hobby Lobby.

This change in the application of the First Amendment, from protecting belief to protecting action presents a vast array of opportunities for litigators on all sides of the issues presented. The evolving debates about LBGTQ rights presents a host of opportunities. For most of the cases, including those establishing the right of same-sex couples to marry (and to enjoy the "benefits" of access to the family law courts), the arguments have been between people who believe that sexual orientation is a matter of genetics, or other uncontrollable impulses, and others who believe that some behaviors should be regulated on grounds of "morals" or personal taste.

But what if a same-sex couple believes that their love is determined by the god that they worship? What if they believe that they are religiously mandated to marry the partner whom their god has chosen, and the chosen partners are the same sex? Under the common language of "religious freedom restoration" acts, will state governments and courts be required to honor that religious belief and action?

The pope, head of the Catholic Church, has spoken forcefully of the religious requirement of welcoming strangers, caring for the poor and the oppressed. The Catholic diocese of Los Angeles takes the pope's commands to heart, and provides resources to immigrants, documented and not, and groups helping immigrants. Around the nation, some "sanctuary city" supporters find their support of sanctuary to be rooted in their religious faith.

Are people of faith and churches who support immigrants and provide sanctuary to them exempted from laws that attempt to stamp out "sanctuary cities," because they are acting from their sincerely held religious beliefs?

If we move the legal standard from protecting belief to protecting action, we then encounter questions about what limits there may be on actions, and what logic drives such limits. As a society, the U.S. and most states condemn homicide as a crime that the law may prohibit. But some states have enacted laws allowing assisted suicide in rare medical situations. And many religious traditions call for homicide as a just punishment for any number of transgressions against religious belief.

Our society has distinguished between believing in such punishments and actually carrying them out. But if we change the interpretation of religious freedom, to allow the freedom to act, not just the freedom to believe, do we provide a defense for those who inflict violence, even homicidal violence, in keeping with their sincerely held religious beliefs?

The law school version of the question is not merely whether religious freedom restoration acts extend to cover anti-personal violence, but rather what is the logic for such an extension. And perhaps more difficult, what is the logic for any limit on such an extension. If such acts allows exemption from some laws, why not from others?

If it is permissible to discriminate based on one set of chromosomes, why not based on another? If one can deny service at a health office or bakery based on religious feelings about gender or sexual orientation, why not on racial identity?

Politicians get to toss out ideas that courts then have to address in the world of real people, living real lives. What sounds great in a fund raising mailer or stump speech may pose intractable questions for judges who have to reconcile laws designed to address conflicting societal interests.

And it is the litigators' job, and opportunity, on both sides of any such reconciliation problem, to develop the arguments and evidence to guide the courts to the proper decision.

Thomas M. Hall is a certified specialist in family law practicing in West Los Angeles.