What RFRA Sowed, the Nation Reaps

April 1, 2015

First Indiana, now Arkansas have passed "religious freedom" bills that will protect Christians who discriminate against LGBTQs, and for that matter anyone else, on religious grounds. This is a predictable result of the 1993 federal Religious Freedom Restoration Act (RFRA), a regrettable piece of legislation whose beneficiaries are now (in the wake of the disastrous Hobby Lobby decision) free to unleash all the unconstitutional mischief that this ill-considered legislation always portended.

First, the background. In 1990 the U. S. Supreme Court ruled in Employment Division v. Smith that states were not required to accommodate otherwise illegal actions performed in the pursuit of religious beliefs. (The case involved Native Americans who had been fired, then denied unemployment benefits, after they used the prohibited drug peyote in a Native religious ritual.) The Smith ruling appalled a lot of people, but at the time I was not one of them. On my view, Smith set a high standard for secularism: permitting government to conduct itself in a religion-blind manner, not requiring it to treat certain illegal acts differently just because they had been done for religious purposes, thus avoiding a potential entanglement of church and state. Mine was a minority view. One of the unlikeliest coalitions of liberals and conservatives ever formed coalesced, determined to "fix" what the Smith ruling had "broken." How unlikely was this coalition? The resulting legislation, the Religious Freedom Restoration Act (RFRA), was introduced in the U. S. Senate by liberal lion Ted Kennedy and arch-conservative Orrin Hatch. (If my Net skills were better, I'd insert a gif of the exploding-head shot from that classic flick Scanners here.)

The problem with RFRA, of course, was that it obliged government to take religious motives into account and to find ways to achieve public goals that minimally burdened religious practice. In other words, it obliged the state to treat religion differently, and with a higher standard of preference, than it did non-religious concerns. That is to say, RFRA created, yes, special rights for religious believers solely as -- and because they are -- religious believers. That should have been recognized from the get-go as bright, flaming church-state violation. Such was the fervor to "fix" Smith, however, that it was not so recognized, and RFRA became the law of the land.

That's not to say that no one saw the problem with RFRA at the time it was introduced. I did. So did Eddie Tabash, now the Center for Inquiry's board chair and then a leading member of the legal committee of Americans United for Separation of Church and State. He lobbied mightily, though ultimately unsuccessfully, for AU to withdraw its support of RFRA prior to its passage in 1993. There may have been a few others. But I felt very alone the day RFRA passed. I remember saying to myself, "I can't wait to see when the vast wrong at the heart of this law matures and leaps out to bite us."

There was a ray of hope in 1997, when the U. S. Supreme Court invalidated portions of RFRA in Boerne v. Flores. (At the time it was widely claimed, inaccurately, that RFRA had been wholly overturned. Instead, Boerne ruled that RFRA could not be appplied to the states; it remained binding on the federal government.) But Congress wasn't about to take the hint: in 2000 it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), reimposing RFRA-style limits on states in such matters as zoning for churches and religious accommodation for prison inmates. Thanks to yet another spasm of bad lawmaking, the states were forced once again to recognize special rights for religion not available to non-religious persons or persons acting in a wholly secular context.

There matters sat for many years. In 2007, Marci Hamilton -- the city of Boerne's attorney and one of the few consistent RFRA critics -- published God and the Gavel, which made some of the same criticisms of the law that I offered above, and more besides. There the good news ends.

This year's U. S. Supreme Court decision in Hobby Lobby v. Burwell effectively expanded RFRA by declaring that privately held companies could claim RFRA protection for actions based on their owners' faith convictions. The destructive potential that had always lurked in RFRA had shucked off its chrysalis and was spreading its wings.

The Indiana and Arkansas laws essentially complete this process, expanding RFRA protections even to transactions between private individuals. This is the root of objections that the new state laws will license conservative Christian bakers, wedding photographers, and restaranteurs to deny service to LGBTQ customers.

These laws are deplorable. Indiana richly deserves all the flak it's been taking, and I expect the same response to broadside Arkansas. But as we raise our voices against these laws, we should recognize that they are nothing new. They repesent a harvest of church-state entanglement and unfair privileging of religion -- a harvest that was sown in the early 1990s, when a misguided coalition of politicos who should have known better rushed to pass an invalid law, the original RFRA.

RFRA and RLUIPA should be repealed. Though some in our movement have called for that, there seems little immediate prospect that it will occur. Nor is there any realistic prospect that the current Supreme Court will do the right thing and find these laws unconstitutional. Sigh.

At least I get to say "I told you so." 

Comments:

#1 Mario (Guest) on Wednesday April 01, 2015 at 9:56pm

As written, Chuck Schumer’s RFRA doesn’t sanction discrimination—according to Schumer (and I believe him), it carefully guards against it.  Your take on the RFRA—i.e. that it’s a green light for religiously-motivated discrimination—is precisely the same one-note reading as Gov. Mike Pence’s.  That strikes me as a tad ironic.

#2 Tom Flynn (Guest) on Thursday April 02, 2015 at 6:31am

Two things.
1) Just after I wrote this post, Arkansas Governor Asa Hutchinson reversed himself and announced he would not sign the Arkansas RFRA as written. Previously he had been expected to sign the bill, which had been passed by the state legislature.
2) Mario, you’re right. Chuck Schumer’s RFRA, the 1993 federal law, does not sanction discrimination. (Though I’m not sure why you credit Schumer for it, everyone and their dog was on the bandwagon to pass RFRA in the early 90s.) I find the federal RFRA objectionable not because it sanctions discrimination but because it grants protections to religious believers qua religious believers not available to others. The new state RFRAs like Indiana’s are different; they do sanction some forms of religious discrimination in a way that would not have been viable prior to the Supreme Court’s Hobby Lobby decision.

#3 Mario (Guest) on Thursday April 02, 2015 at 2:44pm

“I find the federal RFRA objectionable not because it sanctions discrimination but because it grants protections to religious believers qua religious believers not available to others.”

As I figured.  By the way, I’d be thrilled if the media (including the so-called left-wing portion thereof) would stop treating this like an issue of religious rights vs. the Constitution, as this has zilch to do with religion, really.  The GOP is simply tossing another bone to those voters who imagine that minorities receive special consideration.  Hence, its 24/7 assault on minority rights. We should treat Republican cover stories more skeptically.  By treating this as an actual, honest-to-goodness battle for religious rights (vice just another Republican assault on minorities), the press is playing the GOP’s game. Come to think of it, the press is mostly owned by the right, isn’t it?  That may explain its habit of carrying water for it.

#4 Jim Delton (Guest) on Friday April 03, 2015 at 9:25am

You say “The Indiana and Arkansas laws essentially complete this process, expanding RFRA protections even to transactions between private individuals. This is the root of objections that the new state laws will license conservative Christian bakers, wedding photographers, and restaranteurs to deny service to LGBTQ customers.”

I have read the bill and while I don’t like it, I don’t see where it facilitates any private company denials of service. It seems to only deal with addressing GOVERNMENT burdening of religion.  I’m not a lawyer so I may be missing something.  Can you explain how a private company Bakery would use the Indiana law to refuse service to someone based on THIS law.

#5 Tom Flynn (Guest) on Friday April 03, 2015 at 10:07am

Jim, the Indiana law contains a provision not in the federal RFRA: ““A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” I’m not a lawyer either, but media accounts have been pretty consistent in interpreting this as extending protecting to private transactions, such as a bakery refusing to supply a same-sex wedding. Google “Why Indiana RFRA is different” and a bunch of stories will come up.

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