2. What is the history behind RFRA?
In 1990, two practitioners of a Native American religion were fired from their job as drug counselors and ruled ineligible for unemployment benefits because they were using peyote. They challenged the denial, claiming that their religion made them ingest peyote, so the state could not punish them for exercising their religion.
In Employment Division v. Smith, the Supreme Court upheld the denial of benefits because the law was not "prohibiting the exercise of religion;" the religious burden was "merely the incidental effect of a generally applicable and otherwise valid provision." 494 U.S. 872 (1990). In other words, the Supreme Court declared that a person's private religious beliefs cannot trump the law.
Religious hysteria exploded after the Smith decision, so Congress passed RFRA: a super-statute that effectively amends every other federal law. RFRA essentially acts as a de facto constitutional amendment.
In 1997, the Supreme Court ruled the federal RFRA unconstitutional as applied to the states, but allowed it to continue to apply to federal law. City of Boerne v. Flores, 521 U.S. 507 (1997). Since that time, roughly 20 states have enacted their own RFRAs, modeled off the federal law.
3. What's the big deal with RFRAs?
Do you remember the Supreme Court's Hobby Lobby decision that allowed for-profit corporations to exercise their so-called "religious conscience" in order to restrict employees' access to contraceptives? Have you been watching the legal battles over cake decorators, florists, and municipal clerks who want to be able to discriminate against gay couples in the name of "religious freedom?"
The federal RFRA law is directly responsible for the Supreme Court's Hobby Lobby debacle. State RFRAs, based on the federal version, are emboldening corporations and business owners to discriminate against gay people, religious minorities and the nonreligious, and any other group their religion declares inferior.
Essentially, RFRAs create a legal loophole for anyone who wishes to discriminate in the name of religion, allowing individuals and corporations to be free from following the laws everyone else must follow if they claim it would "burden" their religion. And the bar for what constitutes a burden on religion has been set very low. Here's the causal chain that the Court accepted as a substantial burden on Hobby Lobby's religion:
1. A believes that Drug X violates A's religion
2. A owns a distinct legal entity, Company H
3. Company H buys a health insurance plan for its employees, as required by law
4. H employs Person B
5. Dr. C, B's doctor, recommends and prescribes X for B
6. B personally chooses to take X
7. The company insurance plan pays for X
8. Therefore, A's religion is violated
Additional legal challenges in the wake of Hobby Lobby make it clear that there's no burden too small to trigger a religious objection. One organization has claimed that filling out a single-page form with their name, contact information, date, and signature is a burden on their religion. And the purpose of the form, EBSA 700, is simply to notify the IRS that the organization has a religious objection to contraception. How burdensome!
FFRF has been warning against the dangers of RFRAs since before the Hobby Lobby case was decided. The good news is that other civil rights groups and pro-equality businesses are waking up and realizing the dangers of these laws. To them we say, welcome to the fight.
4. What does RFRA protect that the First Amendment doesn't?
The short answer is "nothing." Indiana's recently passed RFRA law makes it all too clear that these laws are not meant to create a shield to protect the religious from persecution. The First Amendment already does this. RFRAs are designed as a sword to allow religious people and corporations to impose their personal religious beliefs onto others. RFRAs are supported by anti-LGBT lobbyists and others who wish to legalize religiously-motivated bigotry.
5. Aren't some RFRAs better than others? Indiana's RFRA is bad, but aren't the others ok?
Some apologists for the federal RFRA have focused on how RFRAs in states like Indiana differ from the federal law and RFRAs in other states. The truth is that courts have yet to decide whether the minor variations in language state-to-state make any practical legal difference. But more important, debating these nuances misses the larger point: every RFRA creates the same problem by elevating religious belief above the law.
Critics of the original Indiana law pointed out that its language explicitly applied to corporations, appearing to allow businesses to discriminate against minorities. The Indiana Legislature hurriedly added clarifying language stating that businesses cannot discriminate against minorities under the new law, but that amendment merely fixes one of the numerous problems that RFRA creates. The Supreme Court has already decided that businesses can discriminate against women seeking contraceptive coverage under the federal RFRA. Expect more problematic RFRA rulings to come.
6. Is RFRA constitutional?
While the Supreme Court's Hobby Lobby ruling relied solely on the federal RFRA, rather than on an interpretation of the Constitution, the Court intentionally avoided addressing whether RFRA is itself a constitutional law. FFRF's amicus brief in the case received national attention for being the only brief to argue that RFRA is unconstitutional. Here are the arguments:
a. RFRA violates the separation of powers
Our Constitution is based on the principle that government power is divided between three branches, the Executive, Legislative, and Judicial. RFRA is a law passed by Congress that dictates how the judicial branch is supposed to interpret a citizen's right to religious freedom. When the Supreme Court decided Employment Division v. Smith, it was exercising judicial power to interpret the First Amendment. Congress didn't like that interpretation, so it passed a law that imposed a new interpretation of religious freedom on every federal statute. RFRA was a slap in the face to the Court.
b. RFRA violates Article V
RFRA operates like a constitutional amendment, but was passed like any normal piece of legislation. It's a super-statute that trumps every U.S. law and regulation, just like the Constitution. It imposes a new interpretative framework that fundamentally changes the law of the land, but wasn't subject the rigorous procedures our Constitution has in place for constitutional amendments.
c. RFRA violates the Establishment Clause
RFRA elevates religious beliefs above the rights of citizens, granting special privileges to those who profess religious beliefs. RFRA favors religious citizens (or corporations run by religious citizens) by granting them exemptions to the law, while disfavoring nonreligious citizens who are required to follow the law.
7. What can I do to stop RFRA?
You can voice your opposition to the federal RFRA by contacting your members of Congress asking them to repeal RFRA.
JOIN FFRF, which has taken a leadership role in calling for repeal of RFRA, and which will keep you informed of RFRA action in your state. Not only will you stay informed, you will be helping support an organization that has taken action against RFRAs every step of the way.
FFRF has called on governors in every state with a RFRA to work toward repealing those laws. We have also worked with noted state-church attorney and constitutional scholar Marci A. Hamilton to combat the federal RFRA. Opposition to these laws is mounting, thanks to heightened awareness of what RFRAs mean for LGBT rights, religious minorities and the nonreligious, women, and every other group protected under civil rights laws. In addition to supporting FFRF, you can spread the word to ensure that everyone is aware of the threat posed by RFRA.