Religious Freedom, Then and Now

The hot topic in the news over the past two weeks has been the passage of Indiana's "religious freedom" law, which mimics the federal Religious Freedom Restoration Act in some ways but differs in others. The law has been slammed as a "license to discriminate" against gay people. Though it is not quite that bad, the timing makes the intent transparent. Indiana began issuing same-sex marriage licenses in October and the Supreme Court is soon to rule on the issue nation-wide. Opponents of LGBT equality fear a dark future of inclusion and acceptance and are working to create legal loopholes for the intolerant.

RFRAs impose a "compelling interest" test on state laws which "substantially burden" religious practices. That means the government has to show that it has a really good reason for a law, and the law has to apply with "the least restrictive means possible."

I wrote a piece about Indiana's law (and Kentucky's) for Insider Louisville and was interviewed for TV by WLKY and for print by the Lexington Herald-Leader. I talked about the interplay between anti-discrimination laws and ordinances and how the law can be used to defend against them. I noted that Kentucky and Indiana already allow anti-LGBT discrimination in most parts of the state, and that these new protections for religious beliefs potentially compound that problem.

But there's a lot more to say about the federal and state RFRAs, and not enough focus has been put on the history of such legislation.

First, a distinction. The original federal RFRA was passed in 1993 in the wake of a Supreme Court case called Employment Division v. Smith. The Court ruled that an Oregon man could be denied unemployment benefits because he was fired for using peyote. As a Native American, he argued that peyote was part of his regular religious practice, and that Oregon's unemployment rules infringed on his First Amendment right to free religious exercise.

The Supreme Court ruled against him. In an opinion by Justice Antonin Scalia and joined by all the conservative members of the Court at the time, the Court held that laws of "general applicability," such as a law denying unemployment benefits to people fired for drug use, did not violate the First Amendment.

Congress responded by passing the Religious Freedom Restoration Act, which rolled back the clock to 1963, when the Supreme Court last held that strict scrutiny should be applied to laws which infringe on religious freedom.

The situation that gave rise to the federal RFRA was very specific: a law made it effectively impossible for Mr. Smith to simultaneously maintain his employment and practice his religion. He had to choose between his spiritual beliefs and full participation in society. By choosing his religion, he became a victim of a state law which, while not targeted at him specifically, made no exception for his honestly held religious beliefs.

State laws like the Indiana RFRA arose much later, and without such a specific situation in mind. Rather than shield people victimized by state laws, they are designed to shield victimizers.

They are intended to give an "out" to people who discriminate against others, not those who are given the same false choice as Mr. Smith. Someone who wants to exclude gay people (for example) from their business is not given a choice between the practice of their religion and full participation in society. Their participation is not at risk. They are not forced to choose between not having a business and not excluding minority customers. Their businesses will persist despite the "burden" of having to take money from paying customers whose identities they dislike.

In his opinion, Justice Scalia actually illustrated the underlying problem with RFRAs:

If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" 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. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," and precisely because we value and protect that religious divergence, we 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. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this.

Employment Division v. Smith, 494 U.S. 872, 888-889 (1993) (internal citations omitted).

Justice Scalia, himself a very conservative Christian, saw then the problem with the test that RFRAs now impose on state governments. While I generally agree that any law which actually infringes on religious practice should be subject to a higher level of judicial scrutiny, I also agree with Justice Scalia that such a broad brush rule makes governing in a diverse society quite difficult, and can undermine very important laws which protect the less powerful and less popular, not to mention basic public safety.