Yesterday Governor Mike Pence of Indiana signed into law the state’s Religious Freedom Restoration Act. The action has drawn sharp criticism by people and politicians who directly oppose religious freedoms and by those who are simply unaware of the Religious Freedom Restoration Act, the federal model for Indiana’s new law.
Here is what you should know about these types of religious freedom legislation:
The Religious Freedom Restoration Act (RFRA) is a federal law passed in 1993 which is intended to prevent other federal laws from substantially burdening a person's free exercise of religion. The legislation was introduced by Rep. Chuck Schumer (D-NY) on March 11, 1993 and passed by a unanimous U.S. House and a near unanimous U.S. Senate with three dissenting votes. The bill was signed into law by President Bill Clinton.
According to the text of the law, the purposes of the RFRA are:
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
Here are the remarks Al Gore and Bill Clinton made on signing the legislation (a transcript can be found here):
Why was the RFRA needed?
As the text of the RFRA notes, the purpose of the legislation was to restore a prior standard of religious exemptions. Legal scholar Eugene Volokh identifies four periods in modern American history that relate to religious freedom exemptions:
Pre 1960s — Statute-by-statute exemptions: Prior to the early 1960s, exemption for religious objections were only allowed if the statute provided an explicit exemption.
1963 to 1990 — Sherbert/Yoder era of Free Exercise Clause law: In the 1963 case Sherbert v. Verner the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption because of the Free Exercise clause. This decision was reaffirmed in the 1972 case, Wisconsin v. Yoder. During this period that Court used what it called “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs. Under this strict scrutiny, religious objectors were to be given an exemption, unless denying the exemption was the least restrictive means of serving a compelling government interest. But during this period, as Volokh notes, “The government usually won, and religious objectors won only rarely.”
1990-1993 — Return to statute-by-statute exemptions: In Employment Division v. Smith, the Supreme Court returned to the statute-by-statute exemption regime, and rejected the constitutional exemption regime.
1993-Present — Religious Freedom Restoration Act era: In 1993, Congress enacted the Religious Freedom Restoration Act, which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny).
If we have the RFRA, why do we need religious freedom legislation at the state level?
RFRA was intended to apply to all branches of government, and both to federal and state law. But in 1997 in the case of City of Boerne v. Flores, the Supreme Court ruled the RFRA exceeded federal power when applied to state laws. In response to this ruling, some individual states passed state-level Religious Freedom Restoration Acts that apply to state governments and local municipalities.
Which states have state-level Religious Freedom Restoration Acts?
Currently, 19 states have a Religious Freedom Restoration Act (AL, CT, FL, ID, IN, IL, KS, KY, LA, MO, MS, NM, OK, PA, RI, SC, TN, TX, and VA). Ten other states have religious liberty protections that state courts have interpreted to provide a similar (strict scrutiny) level of protection (AK, MA, ME, MI, MN, MT, NC, OH, WA, and WI). With some exceptions (such as Mississippi), the state versions are almost exactly the same as the federal version.
What exactly is “strict scrutiny”?
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.
Aren’t state RFRA’s about discrimination against homosexuals?
None of the RFRA’s even mention homosexuals, nor are they about discrimination. As University of Notre Dame law professor Rick Garnett explains, regarding the Indiana law:
[T]he act is a moderate measure that tracks a well-established federal law and the laws of several dozen other states. Contrary to what some critics have suggested, it does not give anyone a “license to discriminate,” it would not undermine our important civil-rights commitments, and it would not impose excessive burdens on Indiana’s courts. . . .
The act’s standard is applied in many jurisdictions across the land and it has long enjoyed support from across the political spectrum. This standard is not new; we have plenty of evidence about how it works. We know that courts have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections. Fighting invidious public discrimination is, American courts agree, a public interest of the highest order. Contrary to the concern quoted in the recent Tribune piece, a business owner or medical professional who invoked the act as a “license” to engage in such discrimination would and should lose. The act creates a balancing test, not a blank check. . . .
Why then do so many people claim it is about discrimination of homosexuals?
Mostly because of biased and incompetent reporting by the media. Last year Mollie Hemingway wrote a blistering critique of reporting on the issue in which she said, “we have a press that loathes and works actively to suppress this religious liberty, as confident in being on the ‘right side of history’ as they are ignorant of natural rights, history, religion and basic civility.”
Not much has changed since last year. Many media outlets identified the Indiana bill as being “anti-gay.” Unfortunately, rather than being outraged at finding they were lied to by politicians and journalists, most Americans will not bother to learn the truth and will remain ignorant about these important laws that protect our “first freedom.”
Addendum: Since many readers are unaware, it is worth noting that while the RFR does not protect businesses from discriminating against homosexuals, that is already allowed except in states or local municipalities that expressly forbid discrimination based on sexual orientation.