— Governor Mike Pence (@GovPenceIN) March 26, 2015
Religious liberty or discrimination? Depending on who you talk to, the latest RFRA legislation has been taken over by talking points instead of facts. Here’s what you really need to know to understand where RFRA came from and why it matters now.
1. Why do we need RFRA if we have the First Amendment?
The federal RFRA was a reaction to a 1990 case in which the Supreme Court changed the understanding that most people had of the First Amendment. In the Smith case, the court held that a state can broadly prohibit possession of hallucinogenic drugs without carving out an exemption for Native Americans who use peyote for sacramental purposes. The court said that the government did not need to have a “compelling interest” to burden free exercise rights when the burden was merely the incidental effect of applying a generally applicable law that is not directed at religious practices.
The federal RFRA, enacted in 1993 with broad bipartisan support, was intended, according to Congress’ finding, “to restore the compelling interest test” to situations where religion is substantially burdened even by a neutral, generally applicable law. Originally the federal RFRA applied to burdens imposed by states as well as the federal government. However, in 1997, in the City of Boerne case, the Supreme Court held that Congress exceeded its constitutional authority in imposing RFRA on the states. So states need to enact their own RFRA’s if they want to assure that state law does not impose substantial burdens on religious exercise.
2. Why is there so much controversy surrounding the RFRA laws enacted by Indiana and Arkansas?
Prior to this year, 19 states had enacted RFRA laws. Two recent developments, though, made the actions by Indiana and Arkansas more controversial. One was the Supreme Court’s interpretation of the federal RFRA in last year’s Hobby Lobby case. There the court for the first time made clear that closely held corporations, as well as individuals, can assert religious rights. The second development has been the rapid legalization of same-sex marriage, and the publicity given to a few cases around the country in which small business owners have been cited for violating state anti-discrimination laws by refusing to furnish goods or services for same-sex weddings.
In both of these situations, religious freedom claims were asserted not by members of minority religious groups, but by conservative Christians. In Indiana, the connection of the new law to same-sex marriage was driven home by a widely-circulated photo in which among the 15 or so people standing behind the governor as he signed the bill were three well-known Indiana anti-gay marriage activists.
3. What do RFRA laws provide?
RFRA laws essentially carve out an exemption from general legal requirements for religious objectors unless the government can carry an especially heavy burden to show that the objectors should be required to comply with the law. If a person’s religious exercise is “substantially burdened,” the government must excuse the person from complying with the law unless the government can show that it has a “compelling interest” and that there is not a less restrictive alternative that would carry out its interest with less of a burden on religious exercise.
4. What kinds of free exercise claims might arise under state RFRAs?
There are a vast variety of regulatory laws that individuals may object to on religious grounds. These range from Muslim police officers who object to grooming regulations that prevent them from growing beards to parents whose religious beliefs preclude them from obtaining vaccinations for their school children.
Claimants (the people who make claims) include many with marginal belief systems — whether that of the Amish, who object to building codes, or New Testament literalists who refuse to allow their children to wear school identification badges containing RFID chips because they are seen as “the mark of the beast.” Claimants may also include many mainstream religious believers — the conservative Christian pharmacist who refuses to comply with state rules compelling him to fill prescriptions for emergency contraceptives, or the Orthodox Jew who resists a subpoena to appear in court on Yom Kippur. RFRAs attempt to create a framework for determining in which of these cases exemptions should be granted from general requirements of the law applicable to everyone else.
5. Are there differences between the federal RFRA and those enacted by Indiana and Arkansas?
Yes there are. Last year, the Supreme Court made it clear in its Hobby Lobby decision that closely held corporations can assert free exercise rights under the federal RFRA. Language in the Arkansas bill appears to allow publicly-held corporations to also assert religious rights. Language in Indiana’s law is ambiguous, but could be read to allow at least some publicly held companies to enjoy religious rights.
While RFRA only applies to burdens imposed by the government, both Indiana and Arkansas laws allow RFRA to be raised in lawsuits where the government is not a party. In Indiana, RFRA can be raised as a defense when someone is sued because they let their religious obligations trump a statutory requirement. Under the Arkansas bill, religious rights can be invoked to obtain an injunction or damages against an individual who insists that I comply with a regulation that violates my beliefs.
Arkansas has also added language defining the “compelling interest” that the government must demonstrate to infringe free exercise as an interest of the “highest magnitude.”
6. Does RFRA really authorize discrimination against same-sex couples?
Here the answer is yes and no. At most, all that RFRA does is to create an exemption from a legal duty for the religious objector. Neither Indiana nor Arkansas has a statewide public accommodation law that prohibits discrimination on the basis of sexual orientation. Since there is no requirement in either state’s law for bakeries or florists or caterers to treat same-sex couples equally in the first place, the religious objector does not need an exemption in order to refuse to provide goods or services for same-sex couples.
7. Why is Indianapolis so upset by the Indiana legislature’s action?
While neither Indiana nor Arkansas has state-wide LGBT protections, in both states specific individual cities have adopted ordinances that prohibit discrimination on the basis of sexual orientation or gender identity. The RFRA statutes require these localities to carve out religious exemptions from their laws, unless RFRA’s compelling interest-least restrictive means tests can be met. This has been particularly galling for the city of Indianapolis, which has attracted lucrative national conventions and sporting events by creating an image of openness and diversity. It is ironic that a statute originally conceived of as protecting religious diversity has become a symbol of religious intolerance.
8. Where there is a public accommodation law barring LGBT discrimination, what is the argument for a RFRA exemption?
Conservative Christians and others argue that they have a sincere religious belief that marriage must be only between one man and one woman. Facilitating or assisting individuals to enter other kinds of marital relationships requires them to act in contravention of their religious beliefs. The public accommodation law substantially burdens their exercise of religion by requiring them to be a part of the festivities. Unless the state can show it has a compelling interest in requiring these individuals and their businesses to violate their beliefs, they must be excused from compliance.
While it might be argued that the state has a compelling interest in generally preventing discrimination, the federal courts (and specific language in the Arkansas bill) require a showing that substantially burdening the religious exercise of these specific objectors is the least restrictive means of furthering a compelling governmental interest. It may be that excluding the few objecting small businesses would have little overall impact on equal treatment for the LGBT community.
9. Are there other examples historically of religious objections to complying with non-discrimination laws?
Yes. The most famous example is the Supreme Court’s 1983 decision in Bob Jones University. There Bob Jones and another Christian school claimed that their racially discriminatory policies were based on their religious beliefs. The Supreme Court nevertheless upheld the IRS’s revocation of the schools’ nonprofit status, saying:
“[T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education … [which] substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”
10. The governors of Indiana and Arkansas have called for legislative “fixes” to their laws. Is that possible?
Since neither state has a statewide LGBT anti-discrimination law, merely excluding local anti-discrimination ordinances from the reach of RFRA would technically restore the status quo ante. However, the real objections are more political than legal, and it is unlikely the homophobic message that some perceived was conveyed by the enactment of the states’ RFRAs would be undone by this change.
Howard M. Friedman is editor of Religion Clause and Distinguished University Professor of Law Emeritus at the University of Toledo.