This is the third in a four-part explainer about the past, present, and future of religious liberty laws.

3. Here’s how to use religious freedom laws to fend off a gay discrimination suit

When Gov. Mike Pence (R) signed Indiana’s Religious Freedom Restoration Act last week, supporters said the law was an innocent way to protect religious freedoms. Opponents said it would cause religious freedoms to trump gay rights.

After a week of mounting pressure both inside and outside of the state, Pence signed an amendment Thursday preventing the law from being used to defend against certain discrimination lawsuits. This is a major change, because in the absence of such a clause, it really is uncertain how a RFRA lawsuit would play out.

Uncertainty is also the situation now in Arkansas, where Gov. Asa Hutchinson (R) signed a RFRA law Thursday without any civil rights protections of the kind in the Indiana bill.

The most popular hypothetical involves whether a religious baker or photographer may refuse to serve a gay wedding. First, it is already legal to discriminate in some ways in most of Indiana and nearly all of Arkansas. Only a handful of places — cities like Indianapolis, for instance — prohibit businesses from turning away people on the basis of their sexual orientation.

But say we are in such a place with gay protections. Could a religious wedding vendor flout those laws to turn away a gay couple? Yes, but then they would be sued. And without a discrimination law carve-out like the one Pence signed, nobody is be sure which side would prevail.

Here would be her defense strategy:

The wedding vendor could always claim that she wasn’t discriminating. Discrimination cases are considered difficult to win because discrimination is often subtle and hard to prove. This helps explain why there are so few examples of lawsuits involving gay discrimination and religious objections. Even when there are anti-discrimination laws on the books, even when gay people have cause to sue, it’s not worth the trouble unless the facts are clear-cut.

But say the wedding vendor wanted to take a stand for her religious liberties.

Without a RFRA, she could try citing the Free Exercise Clause in the Constitution. But after the 1990 Supreme Court decision in Smith, it’s been very hard to win a case on those grounds. The courts would not apply strict scrutiny — a stringent form of judicial review –unless she could prove that the anti-discrimination law deliberately discriminated against a religion.

Another strategy: Many states have clauses in their state constitutions also guaranteeing the free exercise of religion. Some of them interpret their own constitutions in a strong RFRA-like way, but it varies state by state. In Washington, a gay couple recently sued Arlene’s Flowers, a flower shop, for refusing to serve their gay wedding. The flower shop owner defended herself using the state constitution, which calls for something resembling strict scrutiny in these kinds of religious cases. It wasn’t enough. A judge ruled against Arlene’s Flowers in February.

A RFRA empowers a religious objector. Now, the gay wedding vendor has a stronger case because the RFRA explicitly demands that judges apply strict scrutiny. First, she has to demonstrate that serving a gay wedding would “substantially burden” her religious beliefs, and that her beliefs are sincere. “Substantial burden” sounds intimidating, but in practice, it is not a high bar.

Then the court would have to consider if the gay discrimination law serves a “compelling interest” and if it is the “least restrictive means” to accomplish that purpose. In other words, the court has decide if it is vitally important to society that a religious person must obey this law in violation of her beliefs.

These are tough challenges for a law to survive. The courts apply the same strict scrutiny standard to any law they consider racially biased. But as we’ve seen before, courts often choose to interpret RFRAs in a weaker way, avoiding truly strict scrutiny even though the RFRA calls for it.

Citing the tradition of loose enforcement, legal scholars who support Indiana’s RFRA say that gay rights groups never had much to worry about, at least when it came to businesses turning away gay people.

“The case would win on the grounds that non-discrimination laws serve a compelling government interest,” Douglas Laycock, the pro-RFRA law professor said flatly.

Thomas Berg, a law professor at the University of St. Thomas agreed. “The claims about what a RFRA would do in the commercial sphere really have been overstated,” he said. “That’s one of the big misconceptions.”

Marci Hamilton, the Cardozo law professor, says it should not be a foregone conclusion that gay rights will win. Red states like Indiana have conservative, sometimes unpredictable judges—just look at how the Alabama Supreme Court defied federal orders to carry out gay marriages.

The gap between what RFRAs say and how judges interpret them adds to the uncertainty. Will state judges, following the Supreme Court’s lead in the Hobby Lobby decision, recognize the full strict scrutiny powers of their state RFRAs? Or will they apply a diluted version, as has been the precedent in many places?

“I think both sides are going to be looking for test cases,” Hamilton said. “If it goes up to a state supreme court and it’s all going to be about the ethos of that state. And some of these are not states that have a long history of honoring non-discrimination laws.”

Laycock and Berg are supporters of both gay marriage and religious liberty. Both believe that, even with the added firepower from a RFRA, a wedding vendor probably wouldn’t win a gay discrimination case. That’s the likely outcome, they say.

But they don’t think it’s necessarily the moral outcome.

“I would actually protect those people,” Laycock said. “It’s a balancing test. I think a judge would recognize that for religious folks, this is a religious context. And it would have to be a case where a lot of other people offering the service are nearby. On those facts, there’s not really a compelling interest that saying this religious dissenter has to be the one providing the service.”

In other words: If a deeply religious wedding photographer had to walk around and participate in a gay wedding; and if the gay couple could have easily chosen a non-religious photographer; maybe — maybe! — the courts would protect the religious wedding photographer under RFRA.

“Can we recognize, in the limited category of commercial cases, where it’s limited to participation in the ceremony and there are plenty of alternatives, that there’s such a right?” said Berg. “It might be possible in that narrow case. But the record is still that no wedding vendor has ever won a case.”

How Indiana’s RFRA is special

Some of the controversy in Indiana concerns how Indiana’s RFRA goes beyond the federal RFRA. As recently as Tuesday, Pence defended Indiana’s RFRA by comparing the two. “[The Religious Freedom Restoration Act in Indiana] is simply a balancing test used by our federal courts and jurisdictions across the country for more than two decades,” he said in his speech this morning.

This is not exactly true. Indiana’s RFRA possesses additional clauses that expand its power. Mostly, they spell out provisions that some people argue are implied in the federal RFRA.

For instance, the Indiana RFRA allows people to use RFRA arguments in private lawsuits. This would prevent a situation like in the New Mexico case, where the wedding photographer’s RFRA claim was thrown out because the court decided that New Mexico’s RFRA could only be used in a lawsuit involving the government.

Douglas Laycock, the RFRA proponent, argues that the federal RFRA was always intended to be available for use in private lawsuits. But so far, the federal circuit courts are split on this issue; some jurisdictions agree with him and some don’t.

The problem with allowing RFRA to be used in private lawsuits is that it burdens the opposite party with doing the job of the government, said Leslie Griffin, a law professor at the University of Nevada, Las Vegas. ”It’s hard enough for plaintiffs to win discrimination cases. They bear the burden of proof. Now the plaintiff has to prove that the government has a compelling interest?”

Berg argues that, especially with discrimination lawsuits, the government might be involved in various degrees. People might sue on their own, or they might petition the government to bring a lawsuit, or some combination depending on how the law works.

From the perspective of religious people on the defense, a discrimination lawsuit is a discrimination lawsuit regardless of whether the government or a private citizen is suing them, he said. They should be able to use the same defense in both cases. “Should these legal questions really turn on the technicalities of who is on the side of plaintiff?”

The question gets muddier when we leave the realm of discrimination lawsuits. As the RFRA bill was going through the legislature, companies were concerned that employees could use Indiana’s RFRA to sue their bosses. For instance: Could a pharmacist refuse to dispense abortion drugs? If she’s fired, could she use RFRA to sue her private employer for infringing on her religious liberties?

Early on in the process, companies in Indiana raised concerns about these sorts of religious conscience lawsuits, which could get expensive to defend. In response, Indiana’s house added an amendment specifically barring employees from suing their employers using RFRA.

Separately, Indiana’s RFRA is also unusual in that it provides its religious protections not just to individuals, but also to corporations and organizations, both for-profit and non-profit. This is a controversial provision as well, but it has some precedent. In its Hobby Lobby decision, the Supreme Court applied the federal RFRA to defend the conscience of for-profit companies held by religious owners. Many, though thought this was the wrong interpretation. Indiana’s RFRA goes a step further and extends itself to any corporation, closely-held or not.

So when defenders of Indiana’s RFRA say that the law “mirrors” the federal law, they are exaggerating a touch. In addition to copying the federal law, Indiana’s RFRA incorporates two powers that are but ghostly present in the federal RFRA: the right for people to use RFRA in private lawsuits, and the right for any corporations to claim its protections.

These were the same two issues that prompted last year’s RFRA fight in Arizona. In Februrary, the legislature passed SB 1062, a bill tacking these provisions onto Arizona’s existing RFRA law. Gay rights groups started a national campaign, with companies like Apple, Delta Airlines, and Intel prevailing on Gov. Jan Brewer (R) to veto the bill. Eventually she did.

This month, Indiana and Arkansas passed extremely similar RFRA bills, both of which included these two provisions. Thursday, their paths diverged.

Pence signed an amendment adding civil rights protections. Hutchinson signed a bill that trimmed these two provisions away, but didn’t add anything about civil rights. The Arkansas RFRA could still be used in a discrimination lawsuit.

The only thing certain about a state RFRA is that it introduces haziness around what religious people can or cannot do, haziness that will have to be cleared up by lawsuits in the coming years. For gay groups the legal ramifications of a RFRA law amount to an ominous shadow. But their outrage has always been focused on what lurks behind it.

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