The Washington PostDemocracy Dies in Darkness

How religious freedom laws were praised, then hated, then forgotten, then, finally, resurrected

Patience Alexander, 5, was recruited by Freedom Indiana to deliver two wagonloads of letters, about 10,000 in all, from opponents of the Religious Freedom Restoration Act to the office of Indiana House Speaker Brian Bosma (R-Indianapolis), which were accepted Monday by Tory Flynn, director of communications for the Indiana House Republicans.  (Charlie Nye/Indianapolis Star via AP)
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This is the second 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

2. How religious freedom laws were praised, then hated, then forgotten, then, finally, resurrected

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

4. What everybody missed during the fight over religious freedom laws this year

The Constitution resembles a basket of kittens. It is a tangle of fuzzy edicts pushing, pulling and scratching to test at each other’s boundaries. For most of American history, people relied on the OG of religious liberty protections — the Free Exercise Clause in the First Amendment. It says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof 

What does the Free Exercise Clause actually promise? Constitutional lawyers can argue about it for days on end — not only because many are nitpickers by nature but because these few words offer scant guidance.

In the first 200 years, the Free Exercise Clause was interpreted cautiously. Clearly the government could not specifically target religious groups or compel people to join a church. But otherwise, if people of faith objected to a neutral law, they had to ask legislators for exemptions. People who challenged laws in court using a religious freedom argument tended to be unsuccessful, as law professor Michael McConnell explained in a history of these cases for the Harvard Law Review.

That all changed in 1963 with Sherbert v. Verner, a Supreme Court case involving a woman who lost her job because her religion prohibited her from working on Saturdays. Adeil Sherbert filed for unemployment benefits, but the state of South Carolina denied her, saying it was her own fault she couldn’t find work.

By that time, the justices had significantly developed their view of civil rights law. Rulings in Korematsu v. United States — the Japanese internment case — and later in Brown v. Board of Education established a procedure for reviewing laws in conflict with people’s rights.

First, the government had to prove there were very important goals at stake. Then it had to prove that there was no good way to accomplish those goals except to infringe on people’s rights with such a law. In legalese, laws had to serve a “compelling interest” and also had to be “narrowly tailored” to serve that interest.

This standard became known as “strict scrutiny,” and it offers the legal system’s strongest protection, used against laws that interfere with constitutional rights.

Laws that discriminate based on race are subject to strict scrutiny because the 14th Amendment promises “the equal protection of the laws.” Laws that limit certain kinds of speech are also subject to strict scrutiny because the First Amendment promises there will be no laws “abridging the freedom of speech.” They are presumed unconstitutional unless the government shows they are extremely important and necessary.

In 1963, the Supreme Court decided in Sherbert v. Verner that laws infringing on the exercise of religion should also be examined with strict scrutiny.

As long as someone could prove that they held sincere religious beliefs and that the law was a “serious burden” to the practice of those beliefs, then the government had to offer strong overriding justifications for the law and also show that no good alternatives existed.

If the government could not do that, then the law bent, and the religious won an exemption. Following these guidelines, the justices ruled that there was no good reason for South Carolina to deny unemployment benefits to Sherbert, and they took her side.

The decline and extinction of religious strict scrutiny

For at least a decade after Sherbert v. Verner, this doctrine was a powerful tool to carve out exceptions in laws for the exercise of religion. The Amish got to take their children out of school after the eighth grade; Native Alaskans got to hunt moose out of season; a woman who believed that “graven images” were a Biblical sin got to have a special driver’s license that didn’t display her photo.

Slowly, though, the court backed away from the ideas it had set forth in Sherbert. Legal scholars note that by the 1980s, the Supreme Court had become much less sympathetic toward religious lawsuits. Often, the justices applied a diluted version of strict scrutiny, or they avoided applying it at all.

The court signaled the start of a new era with its 1990 decision in Employment Division v. Smith, which involved drug rehab counselors in Oregon who were fired for using peyote in a Native American ceremony. The lower court ruled in their favor, arguing that the state’s drug laws did not serve a compelling enough purpose. The Supreme Court ruled the opposite, and in the process officially threw out the “compelling interest” test for laws that drew religious objections.

In the majority opinion, Justice Antonin Scalia wrote that it was appropriate for the courts to be extremely suspicious of say, racially discriminatory laws. But it was less appropriate to apply strict scrutiny to any law that might inadvertently infringe on someone’s religious practices. Doing so would amount to “a system in which each conscience is a law unto itself,” Scalia wrote.

As long as a law was neutral and did not single out a particular religion, it would not have to meet the Sherbert standard. “[W]e cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order,” he wrote. Courts would continue to apply strict scrutiny to laws that intentionally discriminated against a religion.

Smith sent a clear message that the nation’s laws would not so quickly nor easily bend to accommodate religious freedoms. If people of faith wanted exemptions from general laws, they would have more luck lobbying their lawmakers than filing lawsuits.

RFRA resurrected strong religious rights

The Smith decision was deeply unpopular with both the right and the left. Republicans saw religious freedom being curtailed; Democrats saw minority religious groups being trod on. In 1993, they came together in Congress to pass the Religious Freedom Restoration Act, which the New York Times editorial board hailed as “a welcome antidote to the official insensitivity to religion the Court spawned in 1990.”

The federal RFRA sought to “restore” the Sherbert standard — that is, to resurrect strict scrutiny in religious freedom lawsuits. The text says that when people challenge laws for religious reasons, they should win unless the government can prove that the law passes the strict scrutiny test as it was applied in Sherbert.

Some lawmakers and legal scholars worried this went too far. They pointed out how the Supreme Court had become increasingly reluctant to apply the strict scrutiny standard in religious cases in recent years. In the Smith decision, Scalia had admitted as much. “We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [Sherbert] test inapplicable to such challenges,” he wrote.

Scalia wanted to maintain strict scrutiny as the highest standard of suspicion, reserved for reviewing laws that were racially discriminatory, for instance, or laws that curtailed political speech. To unleash true strict scrutiny onto any law anyone found religiously troubling would torch the fabric of society, he argued in Smith:

Moreover, if “compelling interest” [a tenet of strict scrutiny] really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.

An early objection to RFRA came from the Catholic Church. In recent years, there had been women trying to roll back abortion restrictions by claiming a religious right to have an abortion. These lawsuits all failed. But anti-abortion groups worried that the women might win if RFRA brought back true, Sherbert-style strict scrutiny.

For two years, the anti-abortion lobby blocked RFRA, until lawmakers agreed to clarify that RFRA’s idea of strict scrutiny would reflect the legal climate right before Smith, a situation in which strict scrutiny was applied with a wink and a nod.

“[T]he pur­pose of the statute is to ‘turn the clock back’ to the day before Smith was decided,” according to the legislative report for the House version of the bill.

The Senate ended up muddying the situation, and the final law is somewhat ambiguous. In one section, the federal RFRA refers to the diluted strict scrutiny of the 1980s; in another section, it talks about the strict scrutiny standard set forth in Sherbert.

Now, legal scholars still debate what kind of strict scrutiny legislators actually wanted in the federal RFRA. This ambiguity was passed on to the state laws modeled after it. Should courts take RFRAs at their word? Or with a wink and a nod?

Meanwhile during this process, Congress was aware of the growing conflict between gay rights groups and religious groups, but LGBT concerns were not loudly heard. In the end, RFRA nearly unanimously — on a voice vote in the House and a 97-3 vote in the Senate.

“I don’t think anyone thought really hard about these discrimination arguments,” said Ira Lupu, a law professor at George Washington University who testified about RFRA’s problems in 1992. “This was just before the dawn of what we call the contemporary gay rights movement.”

Concerns about how RFRA interacted with civil rights would only grow in the following years, when landlords in several states argued under RFRA that because of their religious beliefs, they should be able to discriminate against unmarried couples. Some state supreme courts agreed; others didn’t.

Civil rights concerns tore apart the RFRA consensus

In 1997, Marci Hamilton argued and won a case before the Supreme Court that struck down RFRA on federalism grounds — the idea that the federal government cannot meddle too much in state affairs. RFRA would no longer apply to state or local laws, though it would still apply to federal laws.

The decision in City of Boerne v. Flores sent Congress searching through the Constitution for a different way to make states obey RFRA. They proposed a replacement called the Religious Liberty Protection Act, which replicated RFRA using the federal government’s authority to regulate spending and commerce. If the federal government could not tell the states to obey, it could at least threaten to withhold federal money if a state did not play along. (Arkansas Gov. Asa Hutchinson, then a representative, was one of the co-sponsors of the bill.)

But between 1993 and 1997, a lot had changed for gay rights. The Clinton administration instituted the “Don’t Ask, Don’t Tell” policy allowing gay people to legally serve in the military, albeit on the condition that they remained in the closet. Many states and cities had passed gay anti-discrimination laws. In 1996, the Supreme Court ruled that Colorado could not have a law banning cities from enacting civil rights protections for gay people.

When Congress tried to pass RLPA in 1999, Democrats insisted on adding measures to protect civil rights, especially those of gay people. Rep. Jerrold Nadler (D-N.Y.) proposed an amendment that would prevent larger, non-religious companies from using RLPA to skirt laws against housing and employment discrimination.

The Nadler amendment was narrow. It still allowed religious groups, small landlords and small businesses to use RLPA as a defense in discrimination cases. And it said nothing about discrimination in public accommodations — for instance, shops or hotels refusing to serve black, female or gay customers. Still, the Nadler amendment died, and soon after, so did RLPA.

For a while, state RFRAs were passed, but rarely used

Following the 1997 Supreme Court decision curtailing RFRA, and after Congress’s inability to pass as broad of a replacement law, many states enacted their own versions of RFRA. Some copied the language from the federal law verbatim. Other states, like Illinois, put in exceptions for civil rights.

Many states also have language promoting the free exercise of religion in their state constitutions. Judges are free to interpret their own state constitutions, and courts in several states resurrected strict scrutiny under that power.

[Is the controversial Indiana law ‘the same’ as a law backed by Obama?]

But for the large part, the debate over RFRAs and strict scrutiny lay dormant for much of the 2000s. Few cases were brought. RFRAs weren’t taken seriously. Writing in 2010, Wayne University law professor Christopher Lund found that of the 16 states that had RFRA laws on their books at the time, only six of them had three or more cases in which RFRA was used. Lund also found that RFRA laws rarely resulted in a win for religious people.

“[I]f the number of state RFRAs cases itself is disappointing, even more disappointing are how scarce the victories are,” he wrote.

He continued: “[I]t probably does mean something when more than half of the jurisdictions have no litigated victories under their state RFRAs.

Why? Lund suspected that local lawyers lacked knowledge of their state RFRAs or lacked experience making such religious liberty claims. Lund also found that states were inconsistent in holding laws to the strict scrutiny standard.

Connecticut, for instance, has a RFRA, but its courts have interpreted it out of existence. Lund found that the state pretty much follows the lenient standard in Smith. “Connecticut here has done the one thing almost unimaginable,” he wrote. “It has interpreted its RFRA as equivalent to the very standard it was intended to supersede.”

This is the strange fact of RFRA history: Though these laws carry intimidating language about strict scrutiny, in reality courts have been hesitant to recognize their power. That could change.

Interest in RFRAs reignited after Hobby Lobby and Elane Photography.

Recent gay marriage victories made religious communities anxious about how gay rights would impact their lives. Two recent high-profile lawsuits showed them how RFRAs might help shield their religious liberties.

In 2006, professional wedding photographer Elaine Huguenin refused to photograph a lesbian commitment ceremony. She was found guilty of violating a New Mexico law prohibiting businesses from discriminating against gay people. Huguenin was forced to pay the couple $7,000.

Huguenin attempted to use RFRA to argue that she deserved an exemption because of her religious beliefs. But the New Mexico Supreme Court said in 2013 that its RFRA only applies to lawsuits involving the government, not lawsuits between private parties. Last spring, the Supreme Court declined to hear Huguenin’s case, which infuriated religious groups. They wondered if she could have won had the courts allowed her to use a RFRA defense.

Then, in June last year, the Supreme Court gave the federal RFRA star billing in its decision for Burwell v. Hobby Lobby. Using the terms set out in RFRA, the court ruled that Obamacare could not force a religiously run business to pay for insurance that included coverage for contraceptives.

Writing for the majority, Justice Samuel Alito gave the government a freebie on whether or not Obamacare carried out a “compelling government interest.” But the other half of the strict scrutiny test asks whether there are other alternatives that are less offensive to the religious objectors.

In this case, the Supreme Court found there was an alternative — the government had already given religious nonprofit groups an exemption from the requirement to pay for contraceptive coverage for their employees. The government would pay instead. In Hobby Lobby, the court ruled that religious for-profits also deserved to enjoy that exemption.

Hobby Lobby was an important decision for RFRA because the Supreme Court treated it with utmost seriousness. “The court took the federal RFRA on its own terms,” said Ira Lupu, the George Washington University professor. “The federal RFRA had been interpreted in the lower courts in a diluted or weakened way over the last 20 years. Hobby Lobby ratcheted up the seriousness.”

The decision gave RFRA a fresh coat of paint by interpreting it in a couple of new ways. First, the court allowed religiously held companies to argue under RFRA, when the law only talks about the religious rights of people. Some have argued that companies, even those run by religious families, don’t have religious rights in the way that individuals do, and so RFRA shouldn’t apply.

Second, Hobby Lobby, seemed to have a very loose definition of RFRA’s requirement that religious objectors prove the offending law imposes a “substantial burden” on their religious practices. Obamacare was not asking companies to hand out or promote contraceptives, just to pay for employee health insurance plans that offered them. Justice Ruth Bader Ginsburg, in her dissent, argued this connection was “too attenuated to rank as substantial.”

States courts are of course free to interpret state RFRAs however they like. But the Hobby Lobby decision demonstrated how RFRA laws could be used to take a bite out of legislation as monolithic as the Affordable Care Act.

Since 2013, five more states have enacted RFRA legislation: Kentucky, Kansas, Mississippi and, this year, Indiana and Arkansas. Only Indiana’s version includes civil rights protections, and those were added only after a blitz of national opprobrium.

In the remaining states, it is still too early to tell how these courts will apply strict scrutiny. Will they believe that the state has a “compelling interest” in outlawing gay discrimination? Will they believe that the reason is compelling enough to force devout people to act against their religion? Will they apply a diluted or strict version of strict scrutiny?

RFRA laws tip the scales of justice in favor of religious objectors, but state courts still have tremendous leeway. That is why these laws are said to be so ambiguous: Nobody is sure how a judge will apply them. Defenders of RFRAs say they would never enable gay discrimination. But without clarifying legislation, that is a promise they cannot keep.

Read more:

1. The twisted history of how religious freedom laws confused everybody

2. How religious freedom laws were praised, then hated, then forgotten, then, finally, resurrected

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

4. What everybody missed during the fight over religious freedom laws this year