What RFRA Sowed, the Nation Reaps

April 1, 2015

First Indiana, now Arkansas have passed “religious freedom” bills that will protect Christians who discriminate against LGBTQs, and for that matter anyone else, on religious grounds. This is a predictable result of the 1993 federal Religious Freedom Restoration Act (RFRA), a regrettable piece of legislation whose beneficiaries are now (in the wake of the disastrous Hobby Lobby decision) free to unleash all the unconstitutional mischief that this ill-considered legislation always portended.

First, the background. In 1990 the U. S. Supreme Court ruled in Employment Division v. Smith that states were not required to accommodate otherwise illegal actions performed in the pursuit of religious beliefs. (The case involved Native Americans who had been fired, then denied unemployment benefits, after they used the prohibited drug peyote in a Native religious ritual.) The Smith ruling appalled a lot of people, but at the time I was not one of them. On my view, Smith set a high standard for secularism: permitting government to conduct itself in a religion-blind manner, not requiring it to treat certain illegal acts differently just because they had been done for religious purposes, thus avoiding a potential entanglement of church and state. Mine was a minority view. One of the unlikeliest coalitions of liberals and conservatives ever formed coalesced, determined to “fix” what the Smith ruling had “broken.” How unlikely was this coalition? The resulting legislation, the Religious Freedom Restoration Act (RFRA), was introduced in the U. S. Senate by liberal lion Ted Kennedy and arch-conservative Orrin Hatch. (If my Net skills were better, I’d insert a gif of the exploding-head shot from that classic flick Scanners here.)

The problem with RFRA, of course, was that it obliged government to take religious motives into account and to find ways to achieve public goals that minimally burdened religious practice. In other words, it obliged the state to treat religion differently, and with a higher standard of preference, than it did non-religious concerns. That is to say, RFRA created, yes, special rights for religious believers solely as — and because they are — religious believers. That should have been recognized from the get-go as bright, flaming church-state violation. Such was the fervor to “fix” Smith, however, that it was not so recognized, and RFRA became the law of the land.

That’s not to say that no one saw the problem with RFRA at the time it was introduced. I did. So did Eddie Tabash, now the Center for Inquiry’s board chair and then a leading member of the legal committee of Americans United for Separation of Church and State. He lobbied mightily, though ultimately unsuccessfully, for AU to withdraw its support of RFRA prior to its passage in 1993. There may have been a few others. But I felt very alone the day RFRA passed. I remember saying to myself, “I can’t wait to see when the vast wrong at the heart of this law matures and leaps out to bite us.”

There was a ray of hope in 1997, when the U. S. Supreme Court invalidated portions of RFRA in Boerne v. Flores. (At the time it was widely claimed, inaccurately, that RFRA had been wholly overturned. Instead, Boerne ruled that RFRA could not be appplied to the states; it remained binding on the federal government.) But Congress wasn’t about to take the hint: in 2000 it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), reimposing RFRA-style limits on states in such matters as zoning for churches and religious accommodation for prison inmates. Thanks to yet another spasm of bad lawmaking, the states were forced once again to recognize special rights for religion not available to non-religious persons or persons acting in a wholly secular context.

There matters sat for many years. In 2007, Marci Hamilton — the city of Boerne’s attorney and one of the few consistent RFRA critics — published God and the Gavel, which made some of the same criticisms of the law that I offered above, and more besides. There the good news ends.

This year’s U. S. Supreme Court decision in Hobby Lobby v. Burwell effectively expanded RFRA by declaring that privately held companies could claim RFRA protection for actions based on their owners’ faith convictions. The destructive potential that had always lurked in RFRA had shucked off its chrysalis and was spreading its wings.

The Indiana and Arkansas laws essentially complete this process, expanding RFRA protections even to transactions between private individuals. This is the root of objections that the new state laws will license conservative Christian bakers, wedding photographers, and restaranteurs to deny service to LGBTQ customers.

These laws are deplorable. Indiana richly deserves all the flak it’s been taking, and I expect the same response to broadside Arkansas. But as we raise our voices against these laws, we should recognize that they are nothing new. They repesent a harvest of church-state entanglement and unfair privileging of religion — a harvest that was sown in the early 1990s, when a misguided coalition of politicos who should have known better rushed to pass an invalid law, the original RFRA.

RFRA and RLUIPA should be repealed. Though some in our movement have called for that, there seems little immediate prospect that it will occur. Nor is there any realistic prospect that the current Supreme Court will do the right thing and find these laws unconstitutional. Sigh.

At least I get to say “I told you so.”