BY ELLIOT MINCBERG
Eliot Mincberg is a Senior Fellow at People For The American Way. Note: This article first appeared at Huffington Post.
Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.
Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it’s a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court’s rewriting of RFRA in Burwell v. Hobby Lobby.
Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment’s Free Exercise doctrine that it was meant to restore, RFRA wouldn’t have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a “substantial burden” on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant’s religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly “operate to impose the employer’s religious faith on the employees” and others.
In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation’s owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a “substantial burden” on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority’s view, Justice Ginsburg suggested, RFRA could be interpreted to “require exemptions” in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that “prohibitions on racial discrimination” would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.
So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court’s re-writing of RFRA’s language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the “Hobby Lobby bill.”
Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn’t until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year’s state RFRA proposals.
Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would “gut” the bill.
As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to “clarify” that Indiana’s RFRA law cannot be used to deny services to anyone. That would be a welcome step – one that flies in the face of the clear intent of some of the bill’s backers, which was clearly to enshrine such a “right” for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas’ RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.