Copy Paste

Plagiarism has been a big news item lately. At the Republican National Convention this past week, Donald Trump's wife Melania gave a speech that included word-for-word passages taken from Michelle Obama's 2008 speech to the Democratic National Convention. That caused a bit of an uproar, mostly among academics, journalists, and Democrats.

Stealing other people's words and passing them off as your own is bad. But stealing from others is not the only form of plagiarism. There is also something called self-plagiarism, where you steal from yourself without attribution. Compared to stealing from others, it's a lesser sin, but still generally frowned upon. Sometimes sternly.

Now, a disclosure. Lawyers are habitual plagiarizers. We recycle documents constantly, using language from past motions written by ourselves and partners to fill out new motions, copy/pasting big chunks of old briefs and filings into new briefs and filings, etc. Firms often keep repositories of past filings that are shared by multiple lawyers. Some lawyers, especially those with lots of clients and heavy workloads dealing with the same legal issues over and over, routinely reuse old documents, sometimes simply replacing one client's name with another. It's not the best way to do things but it saves a ton of time. There are some filings in litigation that are truly routine and rewriting them from scratch is wasteful and simply not necessary.

Is this OK? I've seen it excused on the basis that the lawyer is not claiming whatever it is he or she plagiarized as his or her original work in a public sphere - in other words, there is a difference between court filings and an academic article or a news piece - but that's not really true because court filings are public and lawyers sign their names to everything they file.

But, on the other hand, legal advocacy is not an academic pursuit. You have to write a lot and provide sources, sure, but lawyers use written briefs and motions to point out to the court the legal reasons why their client should win a particular dispute. Legal writing is a tool more than a piece of scholarship. Even a 14,000-word appellate brief is not considered an academic work for which the author is seeking personal recognition. It's a letter to the court asking for them to do something in your favor and giving them reasons why they should.

Judicial opinions, like those written by Supreme Court justices, are a little different in my mind. They're still not academic or journalistic works, but they carry the weight of law and are cited for their authority as legal precedent. They gain power over time, and reflect the author's personal views on how the law should operate and how it should be applied to facts which may reoccur in the future. Judicial opinions contribute to a judge's public reputation. So, in that case, I think plagiarism is a much bigger deal.

What about self-plagiarism in judicial opinions? Well, that's kind of curious. Is a judge ripping himself or herself off in an opinion without attribution as big a deal as stealing from another judge without attribution? Probably not. But is it still kind of dubious? Probably.

Until recently, I had never noticed an incident of judicial self-plagiarism. But in my preparation to teach an upcoming class on constitutional rights, I noticed an interesting little historical reference used twice by the late Chief Justice William Rehnquist.

In 1985, the Supreme Court decided the case of Wallace v. Jaffree. Jaffree was a lawyer and the father of three children attending public schools in Mobile, Alabama. At school, his children were required by state law to observe "a period of silence, not to exceed one minute in duration...for meditation or voluntary prayer." Jaffree sued the school district, arguing that the purposeful inclusion of "voluntary prayer" by the Alabama legislature violated the Establishment Clause of the First Amendment.

The Supreme Court agreed with Jaffree, and struck down the law. In dissent, then-just-Justice Rehnquist (he would become Chief the next year) wrote a solo dissent criticizing the Court's interpretation of the Establishment Clause. The Court interpreted it to require strict religious neutrality on the part of the government. Rehnquist argued that the prominent role of religion in the history of American government belied this claim. To bolster his argument, Rehnquist referred to a person you may have heard of:

George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

472 US 38, 113. I didn't omit any citation. Rehnquist didn't cite any source for this quote. But that's not the rub.

The rub comes fifteen years later, in a case called Santa Fe Independent School District v. Doe. In the late 1990s, Santa Fe High School in Texas started every football game with a student-led prayer or invocation. A group of students and their parents sued the school district, arguing that the pre-game religious ritual violated the Establishment Clause.

Like in Jaffree, the Supreme Court agreed, striking down the school's prayer scheme. Justice John Paul Stevens wrote the majority opinion (just like he had in Jaffree). And once again, now-Chief-Justice Rehnquist dissented. The fact that he dissented wasn't the only thing familiar about the case. This passage from his opinion in Santa Fe may also seem familiar:

...when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

530 U.S. 290, 318.

Rehnquist used the exact same sentence about George Washington in his Santa Fe dissent that he had previously used in his dissent to Jaffree. The only difference in Santa Fe was that he included a historical source for the Washington quote ("Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).").

Rehnquist did not, however, note the fact that he had already written this same passage in Jaffree. Normally when Justices quote themselves, they cite to the original opinion (even if it was a dissent and not the majority holding). It is somewhat odd that Rehnquist didn't do that in Santa Fe considering he was trying to make the exact same point he made in dissent to Jaffree.

Is this a big deal? Probably not. Chief Justice Rehnquist was no Melania Trump. But it is interesting to see that the phenomenon of plagiarism pops up even in the hallowed halls of the United States Supreme Court from time to time.

We Meant Well

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution (emphasis added)

"We Meant Well" is not just the title of Peter Van Buren's excellent book about the futile and wasteful attempt of the U.S. to rebuild Iraq after invading it. It's also the universal plea of all those who, despite good intentions, really made a mess of things somehow.

This week, Pew Research released the results of a poll about freedom of speech. For the first time ever, they asked whether respondents believed government should be able to prevent people from saying things offensive to minority groups. Two-thirds said no. Twenty-eight percent said yes.

If you're a proponent of free speech, or, rather, opposed to the government criminalizing speech, the results should be reassuring to you. It seems there is little support for a crackdown by police and other state actors on offensive utterances. America isn't England, after all. We have a tradition of allowing people, by right, to say pretty much anything they want to say no matter how borish or offensive it might be, with few exceptions.

But digging deeper into the poll results reveals something peculiar. "Millennials," those wily scamps aged 18-34, support so-called "hate speech" laws more than anyone else. Forty percent are OK with government restrictions on speech offensive to minority groups. Nobody else comes close. Both Gen X (my generation) and Boomers (my parents) manage less than thirty percent support for such a proposition. It may or may not shock you that the "Silent Generation" (my grandparents) aren't keen on laws against racist commentary at all - eighty percent say no.

The racial breakdown is also not especially surprising. Non-whites support anti-racist speech laws at a rate fifteen points higher than whites. So the two biggest contingents of support come from young people and people of color.

If you run in academic circles or pay attention to the various anti-racist protest movements around the country, you might be inclined to believe that the vast army of non-white PC fascists on college campuses is the force behind this sentiment. But the poll shows that support for hate speech laws declines as college education increases. Granted, there are a LOT more college graduates both older and whiter than the current crop of college protesters fighting for "safe spaces" and racial justice across America's quadrangles, but it still suggests that most support comes from those who haven't graduated high school - though the rank of high school graduates now includes more Millennials than it excludes due to age alone.

No matter which demographic breakdown seems more illuminating, it is important to point out the problems with the underlying premise of outlawing "statements that are offensive to minority groups." How does one determine what is "offensive?" I'm not trying to be obtuse here. There are certain racist things that pretty much everybody can understand to be offensive by their very nature. But if we're going to criminalize certain speech (or, as the poll describes it, let the government "prevent" it), we'll need to define it some way. Who gets to define it?

The answer, of course, is legislators. Leaving aside for a moment the fact that most legislators at all levels across our country are white men, we couldn't outlaw offensive speech unless we had a law defining what counts as offensive. Do we let the police arrest only those who use the "N-word?" Or do we let them arrest someone for saying anything up to and including vaguely troublesome dog whistles like "you people?" Where is the line drawn?

Let's create a hypothetical rule to answer that question. Let's outlaw any explicitly racist slur. The "N-word," of course, but also "Chink," "Wetback," "Negro," and the like. If you use one of those words, in any context, the police can arrest you and you can be charged with a misdemeanor. Also, we'll outlaw any terms or statements that are critical of an entire race as a whole. Anyone who says "black people are animals," or "Hispanics are lazy criminals" or anything broadly nasty such as that can also be arrested and charged. 

This rule is passed by a legislature of some sort. Let's call them Congress a decade from now. We've had a couple of elections and we'll presume that a Democratic wave has recaptured both houses. In an effort to appease the liberal base and move the country closer to racial justice, Congress passes the Hate Speech Act that outlaws racist slurs like what we've identified above.

Things go smoothly for a few years. Racist jerks are being arrested and charged and the incidents of public hate speech are on the decline. The law is an effective deterrent for nasty racist commentary. But something else is still happening. Black men are still being killed by police officers at a disproportionate rate. Protesters and angry commentators are still saying and posting things very critical to police forces all over the country.

Then Congress shifts back to the GOP. And, seizing the power of the Hate Speech Act, they amend it to include anything critical of police officers. They call it the Blue Lives Matter Act. Soon, protesters opposed to police brutality get arrested and charged for hate speech by the dozens, and are easily convicted. The law, after all, paints with a wide brush because hate speech can come in varying forms. And why should only racial minorities be protected? Why not police officers, our heroes and protectors?

Such is the danger of criminalizing speech. There is no doubt that racist rhetoric is poisonous to our civil discourse and traumatic to those who are targets of it. Freedom of speech or not, good citizens should not be lobbing hateful comments at each other. Racist slurs and insults reinforce societal inequalities that must be combated and torn down somehow.

But we must resist the urge to "do something" about it if doing something restricts the freedom of expression we enjoy as a right under our Constitution. Not because hateful rhetoric is OK or racists should not be scorned or shunned, but because criminalization of anything increases the power of the police state and gives more power to those who would abuse it. The vague notion that something is "offensive" to someone can be manipulated to benefit the privileged against the oppressed, even if the initial intent was noble.

In 1798, in the wake of the French Revolution, President John Adams signed into law the Sedition Act, making it a crime to criticize the national government. Many people (mostly members of Thomas Jefferson's Democratic-Republican Party) were fined and arrested and imprisoned under the law. Though obviously unconstitutional (the First Amendment expressly prohibits Congress from abridging the freedoms of speech and the press), the Supreme Court of 1798 was not the same as it is now. There was no way to have such a law declared unconstitutional. Only after Jefferson became president and the Democratic-Republicans took office was the Sedition Act allowed to expire.

More than a century later, Congress amended the Espionage Act of 1917 to outlaw "disloyal, profane, scurrilous, or abusive language" aimed at the U.S. government during World War I. The amendment was known as the Sedition Act of 1918 and was not repealed until 1920, two years after the war ended. It was even upheld as constitutional in the case of Abrams v. United States, 250 U.S. 616 (1919). Violation of the law carried a jail sentence as long as twenty years. The most famous person convicted under the law was Eugene Debs, the socialist labor union organizer and critic of the U.S. government (he spoke out against conscription).

The Sedition Act and its later incarnation as an amendment to the Espionage Act, though draped in the nobility of national security and unity, were tools for those in power to consolidate their control and dominance. And that is the risk posed by any restriction on speech. The people in power need only tweak the definition of what speech is criminalized, then aim the coercive power of the police toward their preferred targets. Perhaps that's not scary if you're the one in power and not the current target of the restriction. But political power can be transitory in this country and your tight hold on government could vanish overnight.

Racist speech is reprehensible and indefensible. Yet criminalizing it would only expand the power of the privileged (who fill the seats of government) and the police (who physically assert their will). Pass a hate speech law against racism today, tomorrow it could easily prohibit the critical speech that fuels effective protest movements against government overreach and police abuse.

As the police batons come cracking down on the heads of outspoken troublemakers merely for uttering the wrong words and they find themselves convicted under laws they once supported, surely some will think to themselves, "but we meant well."

Can There Really Be a Conflict Between the First and Fourteenth Amendments?

In his dissent to Obergefell, Justice Clarence Thomas raised the specter of a conflict between First Amendment rights and the Supreme Court's concept of liberty under the Fourteenth Amendment.

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect...
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Thomas does not specify from where exactly these "demands to participate in and endorse civil marriages" will come, however. If those demands are purely social, from individuals and other religious groups, then they are of no concern to the Supreme Court. The First Amendment protects individual free exercise from government action, not from public criticism or social pressure. Unless the government starts demanding that churches perform certain kinds of weddings (it doesn't currently, has never in the past, and won't in the future), no First Amendment infringement seems possible.

But still, this weak argument aside, could the Supreme Court have created the possibility of a conflict between the First and Fourteenth Amendments? In previous writing I have assumed that such a conflict might be possible (but nevertheless the Fourteenth should triumph over the First). But I have thought more about it and now I'm not so sure a conflict is really possible.

Both the First and Fourteenth Amendments constrain government action. The First Amendment says the government can't infringe our rights to speech, petition, assembly, and religion. And not only is our religious free exercise protected, but we are also protected from any formal establishment of a state religion which might exclude non-believers. The Fourteenth Amendment, for its part, requires that the government provide due process before any deprivation of life, liberty, or property, and that it provide equal protection under the law.

So how, exactly, can these two amendments conflict? The right of someone else to get a state license for their marriage doesn't interfere at all with anyone's personal beliefs. It doesn't compel an individual, private citizen to act in any sort of way, either. Churches can still turn gay couples away. Ministers can refuse to solemnize certain marriages they don't condone. Parishioners can shun whoever they find distasteful. Obergefell changed none of that.

Opponents of Obergefell conceive of only two possible scenarios where a conflict between the First and the Fourteenth Amendment can arise.

The first is the possibility that discriminatory religious organizations might lose tax exempt status. In the case of Bob Jones University v. United States, 461 U.S. 574 (1983), a religious school lost tax exempt status because it prohibited interracial dating among students. This was such a flagrant violation of the legitimate government policy of integration and anti-discrimination that the IRS revoked the school's tax privileges. There's an important distinction here: tax exempt status is not a religious right. It is a privilege extended by the government consistent with larger public policies. Whether a religious organization is tax exempt or not has no effect on the individual religious beliefs of its members or its administration. They are free, as individuals, to oppose interracial (or same-sex) marriages in their individual lives, but they can't discriminate in public and expect to receive public benefits for it.

The other situation is the now-familiar case of county clerks in Kentucky. They are denying marriage licenses either to all couples or just to same-sex couples in protest of Obergefell. The clerks argue that their First Amendment religious rights are infringed by having to issue licenses to couples they dislike. But courts have never recognized a right of public officials to exercise their religious beliefs when acting in their official, public capacity. Clerks can certainly believe whatever they want, and in their private lives away from work they can shun anyone they believe is sinful. But when they're at work as county clerks, they are the government. If there is any constitutional conflict at play, it's perhaps an internal conflict within the First Amendment between the Establishment Clause and the Free Exercise Clause. The Establishment Clause prevents the imposition of religious whim by government officials in order to preserve equality for all. In that way, the First Amendment and the Fourteenth Amendment work in conjunction. They don't conflict.

The Supreme Court has previously explained how the First Amendment and Fourteenth Amendment actually work together to preserve individual liberty from government oppression. In West Virginia State Board of Education v. Barnette, the Court struck down mandatory recitations of the Pledge of Allegiance in public schools. The Barnettes, a family of Jehovah's Witnesses, argued that their personal beliefs relegated the authority of the state below the authority of god. Therefore they could not swear an oath or allegiance to the national flag, as mandated by the public school system. They argued that under both the First Amendment and the Fourteenth Amendment, the government could not single out their children for punishment when they refused to say the Pledge due to their religious convictions.

The Supreme Court agreed with the Barnettes. In doing so, the Justices noted that the First Amendment and the Fourteenth Amendment actually work together, protecting the liberties of individuals from government intrusion and compulsion. The Fourteenth Amendment, rather than an enemy of religious exercise and free speech rights, is a tool for their protection:

In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.

319 U.S. 624, 639 (1943).

In the two situations above, where modern proponents of theocracy foresee a conflict between the First and Fourteenth Amendments, there is no government action infringing on free exercise. The revocation of tax exempt status does not compel a change in religious beliefs. It may incentivize religious schools to stop discriminating, but it does not force them to do so. They can continue to discriminate, but they will have to pay taxes in the meantime, just like religious individuals who are also free to discriminate but don't get a tax break for doing so.

And the provision of marriage licenses to same-sex couples doesn't stop religious individuals or organizations from hating and shunning gay people or politically opposing such unions. But county clerks do not act as individuals. They are the government, and as such, they cannot use religious free exercise as an excuse to treat some citizens differently and deny government services to them. When they do so, they create a conflict not between the Free Exercise Clause and the Fourteenth Amendment, but between the government and the Establishment Clause.

Constructive Uses of Freedom

Anti-Muslim attention hound Pamela Geller hosted a "Draw Muhammad" event in Texas this past weekend. Perhaps unsurprisingly in the wake of the Charlie Hebdo massacre in France, it resulted in an attack by apparent Muslim extremists angered by the obvious provocation.

Incidents like this spark the never-ending debate about the limits---if there are to be any---of free speech. On one side, the absolutists who argue that absolute freedom of speech includes an absolute freedom from using good judgment. On another, religious hypocrites who insist they should be free to mock and ridicule others but would happily accept an American Christian theocracy. And on yet another side (this is a triangle), a bipartisan group of authoritarians who believe security is probably a good justification for curbing some mean language.

This is not going to be a "free speech is important, but..." college newspaper editorial. I, like the late Supreme Court Justice Hugo Black, interpret the First Amendment strictly. It says government shall make no law abridging the freedom of speech, and I read that to mean "NO law." I think that rule applies to obscenity laws, so-called hate speech laws, and anything that would prohibit "shouting 'fire' in a crowded theater," too. If I'm any kind of "qualified absolutist" as Justice Black has been described, the qualifications would be few and far between.

That said, you can simultaneously embrace the absolute freedom of speech but still believe that such freedom can and should be used for constructive ends. That's why events like Geller's bother me. Of course she and her supporters have the freedom to purposely provoke Muslims with cartoons of Muhammad. And of course nothing they did justifies the violent attack that resulted. But that still doesn't mean they're good or right or heroes for doing it. And I don't think the cartoonists at Charlie Hebdo, who frequently used racist caricatures to get across their satirical points, should be lauded as heroes of freedom, either. This is not at all to detract from the tragedy of their murders or justify the extremists who killed them.

Last month, cartoonist Gary Trudeau accepted a Polk Award for his long career with remarks that infuriated people who believe the freedom of speech justifies literally anything and everything people want to say. He urged cartoonists and satirists like those at Charlie Hebdo to avoid the urge to "punch down," and instead turn their wit and criticism against those in power. A marginalized minority religion is an easy target. Elites who exploit the masses (and can ruin your career or reputation if you raise their ire) are a more constructive punching bag.

Trudeau then addressed certain absolutists specifically:

What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

This was not well received. David Frum took umbrage in the Atlantic, accusing Trudeau of victim-blaming and ignoring the real source of societal privilege---the will to violence. In my view, Frum tries too hard to wring sympathy for extremists and a desire for censorship from Trudeau's reasonable call for personal temperance. One can simultaneously believe that the freedom to be offensive should be protected but not necessarily used.

It is not anti-freedom to encourage people not to be assholes simply because they can be.

Which brings us back to the Geller event in Texas. The sole purpose of the event was to provoke anger among Muslims who Geller hates and smears at any chance she can get. Her hatred is tribal---an us-against-them, spiritual war between two mutually exclusive civilizations. Those who attended used their freedom only to incite, not for any constructive purpose.

Should we pass laws against events like that? No. There is no justification, whether it be to encourage religious or ethnic sensitivity or to prevent violent responses, for the government to attempt to curb religious criticism or blasphemy of any kind. America should become neither a police state nor a theocracy. But that's not where the discussion should end.

Yes, you have and should have the freedom to criticize any religion. But of what value is your criticism? Are you illuminating contradictions, or exposing corruption, or are you just harassing and ridiculing The Other as part of a tribal circle jerk? It is not unreasonable or fascist to suggest that our freedom can be used for more constructive ends than petty agitation.

Our diverse society includes people of as many different backgrounds and viewpoints as you can imagine. It is critical that we protect everyone's freedom to believe and say whatever they feel. It is also critical that we maintain a dialogue among each other to avoid or minimize unnecessary conflict that solves no problems and helps no one in need. That dialogue should begin with an affirmation of our freedom, not end there.

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.