This is the first in a four-part guide to the past, present, and future of religious liberty laws.
1. The twisted history of how religious freedom laws confused everybody
On Tuesday, Indiana Governor Mike Pence held a press conference defending the aims of the Religious Freedom Restoration Act of Indiana, a controversial measure the legislature passed and he signed into law last week.
Those, at least, are facts that everybody can agree on. Just about everything else in the discussion surrounding the law seems to be up for debate.
Though state RFRAs have been around for decades, there remains tremendous public confusion over what they are and aren’t: whether these are innocent attempts to promote religious freedom, or veiled strikes against gay rights. There is further haziness over the differences between the federal version of the law and Indiana’s, which has extra provisions that have caused the pro-gay rights Human Rights Campaign to dub it a “super-RFRA.”
Pence argued on Tuesday that Indiana’s RFRA “mirrors the federal law that President Clinton signed and it mirrors the laws and statutes of some 30 states.”
That’s not quite right.
In his Washington Post op-ed on Sunday, Apple CEO Tim Cook claimed that RFRAs “allow people to discriminate against their neighbors.”
That’s not quite right, either.
Legal scholars say a key problem with RFRAs is the ease with which people can misunderstand or willfully misrepresent them.
“The RFRAs are couched in legalese,” said Marci Hamilton, a Cardozo Law professor. “On their surface they mean absolutely nothing to the vast majority of people, especially legislators.” Hamilton is one of the chief critics of RFRA laws, but here she finds common ground with one of their chief supporters, University of Virginia law professor Douglas Laycock.
“Legislators — most of them are not dumb, but they have to spend all kinds of time raising money,” Laycock said. “They may not understand how these bills are interpreted. Some may know and not care because it panders to their base and later they can say it’s not their fault if the courts rule the other way.”
Even among those with the background and expertise to understand every aspect of RFRAs, there is a spectrum of disagreement. Some, like Laycock, see them offering necessary protections. Others, like Hamilton, who see them as religious overreach.
In February, Laycock and sixteen other law professors sent a nine-page letter to the Indiana legislature in support of the state’s RFRA bill. It would help accommodate religious minorities, they argued. “By clearly telling state and local officials that they have to consider burdens on the exercise of religion, a state RFRA opens the door for discussion,” they wrote.
A few weeks later, Hamilton and 29 other law professors responded with a letter criticizing the measure. “[T]he broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests,” they wrote.
For years, this debate over RFRAs has taken place largely outside of general public notice. But thanks to religious anxiety over gay marriage; the Supreme Court’s Hobby Lobby decision, which used a religious freedom claim to challenge Obamacare; and a string of gay discrimination lawsuits involving religious wedding vendors, state legislators are taking another look at how RFRAs can be used to protect religious rights that they argue are now under assault.
In doing so, states are resurrecting a decades-old argument over the limits of religious freedom in America. RFRAs inspire confusion in part because they are inaccessibly written, but also because they are fragments of a much larger and much older conflict over Constitutional rights to the free exercise of religion. To understand RFRA laws, we have to begin with history.