Recently advocates of LGBT rights, like lovable and fierce advocate of justice George Takei, focused their ire on the state of Indiana and Governor Mike Pence for passing and signing into law Senate Bill 101, Indiana’s Religious Freedom Restoration Act (RFRA). Allegedly, RFRAs will enable religious folks to discriminate against others, namely people who are LGBT, which will preserve the former’s First Amendment rights to practice freely their religion. John McCormack of the conservative The Weekly Standard wrote, “Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded travel to the state.” McCormack ended his piece with these words: “The point of RFRA is not to discriminate against gay Americans. It is supposed to prevent the government from discriminating against religious Americans.” In the time it took me to research and write this post, the internet news stories grew exponentially with statements from corporations about how they welcome and serve “all” people and that many of them are pulling out of Indiana.
What’s going on? What’s RFRA anyway?
The short answer is that RFRA laws are supposed to set a higher bar for the government to jump over before it can enforce laws that possibly violate religious practice, such as local traffic laws that may exclude the transportation of Amish buggies.
The long answer is much more revealing … and troublesome.
State RFRA laws (now in most of the country through legislation or court decisions, including Illinois) are modeled on the federal RFRA of 1993, which was later struck down in part by the SCOTUS in 1997 as applying only to the federal government. Because of the 1997 SCOTUS decision states felt compelled to pass their own laws, so it’s not a new thing what Indiana has done. It should be noted it remains largely inconclusive if private parties can use RFRAs to deny services to other private parties.
The whole RFRA thing, oddly enough, started as a reaction to the claim to use sacramental peyote as a religious right/rite. See the SCOTUS decision Employment Div. v. Smith. 494 U.S. 872 (1990). See also OYEZ.org for a summary of that case. Antonin Scalia wrote in that opinion finding against the two workers’ religious rights claims to use peyote (case references deleted for readability):
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.
On one hand, Scalia was right. Society would dissolve into anarchy if individual members of society could simply opt-out of laws maintaining order based on religious beliefs and practices. On the other hand, here was the SCOTUS stating emphatically that the government need not demonstrate a “compelling interest” to enforce laws over-against exemption claims rooted in religious liberty. Remember, the federal RFRA was 1993, which was the year when the State Supreme Court of Hawaii ruled in Baehr v. Miike that the state must show a “compelling interest” in prohibiting same-sex marriage. We all know what followed that: the federal Defense of Marriage Act (DOMA), which was ruled unconstitutional in 2013 by the SCOUTS in Windsor.
Back to 1993 and the reaction to Employment Div. v. Smith and Hawaii …
RELIGIOUS FREAK OUT!
The federal RFRA and state RFRAs pretty much say the same thing. For example, Indiana SB 101 (emphasis added):
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
This language seems harmless enough. It simply sets a standard for when and how the government can enforce generally applicable law over-against exemption claims rooted in religious liberty.
Or are RFRAs really that harmless?
Some people now want to use RFRAs as cover to wiggle out of anti-discrimination laws by not renting an apartment to a gay couple, for example, because that would violate their religious rights to … a free conscience? I’m still waiting for someone to explain how the practice of one’s religion is violated in a situation like that one.
As I mentioned above there is a whole lot of uncertainty in the courts about whether or not RFRAs can be used in circumstances involving only private parties. And this is precisely the point that makes the Indiana RFRA version so dangerous. It says in section 9, “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened … may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” This implies directly that private persons and groups of all kinds may use Indiana’s RFRA as a defense against civil discrimination accusations because of the Indiana law’s broad definition of “person” as any “partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, [and] an unincorporated association.” This language when combined with section 9 is especially dangerous in the wake of the SCOTUS Hobby Lobby decision.
It will take years for the SCOTUS to sort out the unintended complications of RFRAs, especially those crafted in the style and substance of Indiana’s. The U.S.A. has the most robust legal justice system in human history, and I am fully confident that the courts/SCOUTS will get this one ultimately right. Interestingly enough, Scalia himself may be the greatest champion of “law and order” / “civil rights” … assuming he will read his own words, especially toward the end of his 1990 “peyote” opinion:
It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.
Yes, Justice Scalia, society is not viable if we elevate our individual conscience to “a law unto itself.” God, have mercy on Christians and others who “widely engage in” discrimination as a religious practice solely based on their felt need for a pure conscience. Christians should think deeply about what is at stake and remember that Jesus is always challenging us to reflect on the impact of our practice on others: