The newly proposed RFRAs being considered in a number of states do in fact differ textually from the older RFRAs in ways that somewhat expand their application and that resolve disputed interpretations of the original federal RFRA in favor of more expansive readings (e.g., on the question whether RFRA can be used as a defense in private litigation). The Indiana law does both of these, although its core provisions establishing the strict scrutiny test for substantial burdens on the exercise of religion are the same as the federal law’s.
But what I think the “nothing to see here” defense misses is the cultural, political, legal, and religious context in which these laws are being passed–a context that could easily lead courts to apply the laws in more aggressive ways. The newly energized effort to push mini-RFRAs like Indiana’s is almost entirely a reaction to the gay-rights movement, including but not limited to the increasing acceptance and reality of same-sex marriage. One need only listen to the kinds of examples that RFRA supporters cite as “burdens” on religion to know that RFRAs nowadays are directed at validating and legitimizing antigay discrimination. What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.
What’s more, the effort to pass mini-RFRAs is now stimulated and fueled by a religious-litigation complex of groups and institutions that did not exist in anywhere near its present form, size, or sophistication when the original RFRA passed. It’s perfectly legitimate for any group, including anti-gay legal groups, to organize and litigate for their purposes. But the changed context they have created through their prodigious efforts makes the passage of spacious and comprehensive “religious freedom” protection very different from what it was two decades ago, even if the words of the laws are the same. We haven’t seen courts treat the strict scrutiny test in RFRA laws very seriously in the past, which is why we’ve avoided the “anarchy” Justice Scalia warned about in Employment Div. v. Smith (1990) (rejecting strict scrutiny of neutral laws that burden religion), but the increased litigation pressure and focus of anti-gay activists may lead courts–especially elected state court judges–in many places to break the dam.
Indiana legislators had a chance to blunt these criticisms and to focus the protections of the law on the minority religious faiths whose practices are often casually disregarded in laws of general applicability (like the use of peyote as a sacrament or prisoners’ desire to grow one-inch beards that don’t plausibly threaten security). The effort was not about allowing discrimination, they protested, but they rejected an amendment modeled on Texas and Missouri RFRA provisions that exempt civil rights laws. That’s right: Texas and Missouri specifically protect civil rights laws in their state RFRAs. Why can’t Indiana?
Judges will of course hold that ending discrimination is a “compelling governmental interest,” legislators and some religious liberty scholars assured us, but then the legislature rejected words that would simply have codified that principle. Why, Indiana?
State law in Indiana does not prohibit discrimination on the basis of sexual orientation or gender identity. A person can be fired because he’s gay or denied housing because she’s transgender. A hotel can deny a room to a gay couple bearing the sign, “Just Married.” So we hear, in a somewhat underwhelming response to criticism of the new Indiana RFRA law, that LGBT people haven’t lost any legal protection because they never had it.
But there are numerous municipalities in Indiana that do prohibit such discrimination in laws that already provide specific religious exemptions. These local laws are newly vulnerable to the defense that they impose substantial burdens on religious practices and beliefs. And local authorities will now have to argue, despite the absence of any statewide legal protection for LGBT people and without the state legislature offering a finger to help, that ending such discrimination constitutes a “compelling interest.” If they jump that hurdle, they will then have to show that they sought to end discrimination in the narrowest way possible, the usual basis on which laws fall under strict scrutiny standards. If they lose, they–meaning taxpayers–may have to pay compensatory damages, attorneys’ fees, and court costs.
In the past, I might have been as optimistic as some apologists for Indiana’s RFRA that civil rights laws protecting LGBT people would pass the test. But the refusal of the legislature to codify any such assurances, combined with a backlash claiming to champion religious freedom and an anti-gay legal establishment ready to pounce, leaves me unpersuaded that there’s nothing to be worried about.
UPDATE: Jon Rauch, as usual, is insightful about what’s happening in Utah.