Marci Hamilton

‘What is Wrong with Extreme Religious Liberty’

MARCI HAMILTON is a leading state/church scholar who holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her undergrad degree is from Vanderbilt, 1979, her M.A.s from Pennsylvania State and her law degree from University of Pennsylvania. Hamilton clerked for Justice Sandra Day O’Connor, and is the author of “God and the Gavel: The Perils of Extreme Religious Liberty,” newly updated this year. She wrote FFRF’s amicus brief before the Supreme Court in the Hobby Lobby challenge of the contraceptive mandate. Her new blog is found at where she writes on issues such as protection of children. She’s received many honors for her public advocacy and scholarship.

FFRF Freethought Heroine Award, 37th annual convention, Los Angeles, Oct. 24, 2014

By Marci Hamilton

It’s an honor to be here. Thanks to Annie Laurie for inviting me and for this wonderful honor.

I’m going to talk tonight about what it has been like being inside the RFRA war, the Religious Freedom Restoration Act war, and what the future holds for these extreme religious liberty statutes and civil rights.

I have been fighting for 20 years the idea that religious believers and institutions should have a right to take actions that harm others. That is really what is wrong with the current balance of church and state in the United States. We’ve created a culture of narcissistic religious believers, who believe sincerely that their rights should trump anybody else’s rights — that they’re right and everybody else is wrong.

It was illuminating to read the crank mail in Freethought Today on the airplane. The person next to me thought I had lost my mind because I was laughing so hard. I had two favorites. One was, “I am a high school student who is also a Christian. Your organization is making it hard for me to express my religion in public.” No, it’s not. Then there was: “This makes me very angry. I would really appreciate it if you let us believe in our god, the god who holds the universe in his hands. Let us be pro-life and let us not believe in the lifestyle of homosexuals.” No one is stopping you.

They seem to believe they have a right to own the public square. There is a lot of talk about religion in the United States; there’s never been more talk about religion in the United States. This talk of the public square is an attempt to own the public square rather than share it.

Another favorite was, “My goal is to destroy, dissolve this organization. 75% of Americans claim to be of Christian faith, which makes us the majority, and in a traditional Democratic Republic the majority rules. When the majority unites we will smash this website organization or company like the sledgehammer to an ant.” This one brought to mind James Madison, who crafted the First Amendment and repeatedly said things that today’s religious lobbyists don’t want repeated. Madison believed that the greatest thing to fear in a republican democracy is faction. And when he used the word “faction,” he meant interest groups.

But at the same time, he said in “Memorial and Remonstrance [against Religious Assessments,” 1785] that we must be aware and be concerned about ecclesiastical establishments. With the framing of the First Amendment, he understood that the problem for religion and the problem of religion is that we need freedom, but we also need disestablishment.

He believed that people who were believers would overreach. And of course that whole generation believed it; why wouldn’t they? They escaped Europe because they were being oppressed for their religious beliefs. But many of them came over here and oppressed others, not knowing any other way.

It’s really the miracle of the First Amendment, and frankly, the way the Supreme Court has interpreted it, that has created diversity and the right to be or not to be a believer in the United States.

I always tell my students that one of the most interesting aspects of the Constitution is that there is only one absolute right in the entire document — every other right the government can trump if its interests are strong enough. The one absolute right is the right to believe anything you want. That is the miracle of the United States. And that’s the right that is protected regardless of what the government ever tries to do. The right to believe what one wants, however, is not packaged with a right not to be criticized or a right to dictate public policy. Quite to the contrary.

Roots of RFRA

So how did I get into this crazy RFRA war? I was clerking for Justice [Sandra Day] O’Connor the year Employment Division v. Smith was decided [in 1990]. That quite simple case was used as the launching pad for extreme religious liberty statutes. It involved two Oregon drug counselors who took peyote as part of a religious ceremony and were fired. When you’re a drug counselor, you’re not supposed to use illegal drugs.

To paraphrase, the Supreme Court said, “In the vast majority of our cases, we have said that if there is a law that’s neutral, not discriminatory, and it applies to everybody who does the same thing, that law is constitutional.” That description was correct. I can tell you as a clerk that year that none of us thought that Smith was going to be the most politically important case of the year. No one thought much of it at all.

But it was the religious lobbyists who jumped on the minute Smith came down and said, “Oh no, that’s not what the standard was. No, Justices, you are wrong. You know what, since the Supreme Court’s so stupid not to know its own cases, we’re going to go across the street to Congress, and we’ll say to Congress, you need to restore religious liberty.” So they marched over to Senators Orrin Hatch and Ted Kennedy. They are the two that made things happen. What they were handed by the Coalition for the Free Exercise of Religion is the so-called, the most brilliantly named statute in American history, the “Religious Freedom Restoration Act.” The “Restoration” in the title is a lie. It was not restoring anything that had been in place before. It was putting in place what the religious litigants had failed to obtain for years.

The coalition asserted that Smith was the end of religious liberty and they got Congress on board. What’s worse is they got the ACLU, People for the American Way and Americans United for Separation of Church and State on board, too. Everybody thought this was a wonderful thing to restore religious liberty.

In 1993, after three years of lobbying and three years of testimony by members of religious and civil liberties groups, including 450 pages of telling Congress that the Supreme Court was stupid, that the Supreme Court didn’t know its own doctrine, didn’t even know what its own cases said, members of Congress said to each other, “You know, if the ACLU and the Christian Legal Society are on the same page, we cannot go wrong. This has to be good.”

The ACLU and People for the American Way and Americans United, none of them did the deep digging. None of them appeared to have read a few cases to figure out that in fact RFRA was a lie. It wasn’t restoring anything; it was creating a new extreme religious liberty standard that was now going to make it so that believers could challenge every law in the country. The law schools were teaching that the standard in RFRA was the standard all along, but it was the standard they wanted. It wasn’t the standard at the court.

In 1993, three years after Smith, the Supreme Court decided Church of Lukumi Babalu Aye v. Hialeah. It was the first case the court decided in which it appeared there was real religious discrimination. The city of Hialeah, Fla., had banned animal sacrifice so that the Santeríans could not practice their religion, but had left in place kosher slaughtering, which is virtually an identical practice.

The church argued the following: The government cannot enforce this discriminatory law against us unless the government can prove it has a “compelling interest,” and that its regulation is the “least restrictive means” of regulating for these believers. In other words, the standard that was suggested to the Supreme Court was that every law had to be tailored closely to the demands of each believer.

The Supreme Court rejected it. The court said essentially, “Yes, when there’s targeting of religion, yes, the government must prove a ‘compelling interest,’ and that’s part of the tradition. But we’re not going to require the government to regulate so that each law is the ‘least restrictive’ for this believer. The law can’t be shaped to one believer.” In the first free exercise of religion case in Reynolds, involving polygamy in 1878, the court held that no one may be a law unto themselves. The Smith court in 1990 and the Lukumi court in 1993 echoed that.

Five months later RFRA was signed into law by President Clinton and celebrated as a restoration of the standard that purportedly had been in place before, but RFRA is the standard the court rejected in the Lukumi case for discrimination cases. It is beyond discussion that the First Amendment had never been interpreted to apply this extreme medicine to laws that are neutral and generally applicable to all.

Voilà, RFRA appears and dramatically shifts the balance between religious liberty and harm. Suddenly, if you can show you have a religious belief that is being “substantially burdened” by that law discriminatory or not, the government now bears the extraordinary burden of proving that that law was passed for a “compelling, or highly important, interest” and it is the “least restrictive means” of regulating this policy for this believer. In short, the law must be tailored to this believer. That’s the RFRA signed into law in 1993.

Boerne v. Flores

I challenged RFRA’s constitutionality at the Supreme Court. It was my first case, indeed my first oral argument. In Boerne v. Flores, I represented the city of Boerne (pronounced BUR-nee), Texas. It was 1997, and in Boerne, a Catholic church in the historic preservation district wanted to demolish the church and build basically a box. The city responded, “No, no boxes. You have to keep the front of that building. If you don’t keep the front of that building, then it doesn’t fit in with the historic district.” As always happens in land use applications across the United States, the parties sat down to find a middle ground.

They started negotiating and essentially reached the point where the city said, “You need to keep 70% of the façade.” The church said, “No, we’ll keep 50% of the façade.” Now it does not take a genius to know the middle ground between 70% and 50% is 60%, right? That was a solution that would have precluded going to court and would have led to building a new church for believers as soon as possible.

But then RFRA became law, and the archbishop of San Antonio invoked it with the message that they did not have to abide by Boerne’s historic preservation law.

The case went all the way up to the Supreme Court. One of my favorite parts of representing the city of Boerne was that the mayor was a Methodist minister, Patrick Heath. He was 100% behind challenging RFRA because he thought that it was wrong. He had both a gentle soul and a practical bent and knew that a landowner should not be able to dictate land use policy just because it was a church.

We argued it was unconstitutional in about five different ways. The court ruled 6-3 that RFRA was unconstitutional in virtually every way that we had argued. Once Boerne came down, the religious lobbyists — largely at that point the Becket Fund and the Rutherford Institute — expanded their targets.

It used to be that Smith was the worst decision in history; now it was going to be the Boerne case. The religious lobbyists went back to Congress and said we want to do it all over again. We’ll agree to a few touch-ups but we want the same law again. Well by that point, groups that fight religious groups on a daily basis in our society had made themselves known to me: the American Academy of Pediatrics, National Association of Regulatory Agencies, every prison authority in the country, the attorneys general, the governors, the mayors, Children’s Healthcare Is a Legal Duty (CHILD).

All of them said, “This law must not be passed again; this law is a nightmare.” And frankly, I didn’t know that many people lobbied against religion when I first undertook to represent Boerne. I had no idea, but I was really taken with people like CHILD’s Rita Swan, who fights medical neglect, and I was persuaded that RFRA was not just a bad constitutional idea but also bad law and bad policy.

I testified against it and had members of Congress tell me, “Oh, I know it’s unconstitutional, but we have to pass it anyway.”

In addition to children’s groups, now we had other groups coming out of the woodwork and the ACLU began to stir. The Christian Legal Society and other conservative Christian groups were losing some of the battles on fair housing laws in the states and needed RFRA as a backstop to permit them to reject rental applicants who were unmarried, single mothers and/or same-sex couples. The ACLU saw that their own agendas were being undermined in the states.

No unanimous consent

There was back and forth from 1997 to 2000. First they tried to pass just RFRA redux. It doesn’t make it because everybody knows this is a law that’s intended to undermine civil rights. The House passed it 308-117 as a political nod, knowing the Senate would not take it up. Then there was the deal with the devil. The civil rights groups acquiesced with, “You can have RFRA as applied to federal law because the federal civil rights don’t apply to the LGBT community.” But no RFRA applicable to state laws, because LGBTQ and housing civil rights were making progress in some states.

At the time, Title VII didn’t protect sexual orientation but states were starting to, and the Supreme Court had yet to treat LGBTQ as a suspect class and worthy of heightened protection under equal protection. So a RFRA only against federal law wouldn’t cut back on LGBTQ rights. In other words, the ACLU agreed to a law that had the potential to attack federal civil rights but was willing to let it go if it just didn’t do anything to the LGBTQ community.

Then James Dobson and Charles Colson came into the picture. Dobson purportedly was behind the push for rights for religious landowners to trump local land use laws. Colson, of Watergate fame, came in from his Prison Fellowship ministry saying he needed to be able to evangelize with fewer restrictions in the prisons.

It’s July 27, 2000. I get a call. We are told that we need to start putting together the panels because there are going to be hearings from the opponents to a new RFRA in September. We’ll bring in Mayor Rudy Giuliani and Sen. Patrick Moynihan, both of whom had asked to testify, the National League of Cities, International Municipal Lawyers Association. A lot of people wanted to explain what was wrong with this law.

That night I get a phone call from a reporter: “Did you know that RFRA and RLUIPA just passed?” I said, “No, they’re on summer recess.” He said, “You better talk to someone because I heard they passed.”

As soon as they went into recess and the members who were opponents had left town, leadership took RFRA and the Religious Land Use and Institutionalized Persons Act, which is RFRA applied to land use and to prisons in the states, and passed it by “unanimous consent” in one house and then the other. Unanimous consent is the phrase used by Congress when you have leadership bring a bill up with no quorum, no roll call and no requirement of anybody being there but a handful.

They hired a courier to run it from the House to the Senate, and before anybody in opposition could learn what was going on, the new RFRA and RLUIPA was passed. To this day, they say they passed it “unanimously.” That is propaganda.

I’m on the phone to reporters and editors routinely, “How in the world could you not do the research to figure out that it wasn’t unanimous?” “Well, they told me.” I say, “Please do your homework.” It was not passed unanimously, ever, ever. It was passed by unanimous consent in 1993 in the House; it was passed 97-3 in the Senate. It was passed by unanimous consent in both houses in 2000, never a roll call, never a quorum.

So that is the bill that is so beloved, and that everybody says, “Well, how can you be against something that everybody loved?” Well, because it’s a bad bill. So at the same time they’re in Congress trying to get a new federal RFRA, the Rutherford Institute fanned out into the 50 state capitols in order to push for 50 state RFRAs.

The idea was that this super-strict standard would apply to the federal government from the federal RFRA and to all state laws through state RFRAs and thereby halt all laws for any religious believers. The thinking was that if we can’t get it at the federal level, we’ll do it at the state level. That had mixed results. California’s RFRA was killed twice, partly because someone accidentally faxed me the Christian Legal Society’s letter explaining the fair housing point, which I had not known up until then.

The group in California that really blocked it was the juvenile justice judges. They were very concerned about custody and family decisions and how a RFRA would take away the standard of the best interest of the child. But it’s now in place in 20 states; we now have 20 state RFRAs. We have a federal RFRA that only applies to federal law, and we have RLUIPA applying to land use at the local and state levels and in prisons, and 20 state RFRAs.

First there were about 10 or so and then interest petered out for about a decade, but with same-sex marriage on the horizon, interest rose again and the last 10 have been a product of that movement.

Affordable Care Act

So the Affordable Care Act shows up, and conservatives don’t like it, to put it mildly, but it’s declared constitutional. They can’t wipe it out at the Supreme Court, so how could they attack it? They sought the tools available, and the tool available was RFRA. In come the Koch brothers — money — who founded the Cato Institute, you get the Greens’ money [Hobby Lobby], and you get the Alliance Defending Freedom and the Becket Fund [for Religious Liberty]. What do you get? You get an argument that Hobby Lobby, which sounds like a mom and pop organization, but has $3.3 billion in annual sales, 23,000 employees and over 600 stores, needs protection. Why? They’re religious.

They come in and say they’re religious. Those of us who are on the inside are saying, “No, they’re not.” I was there, I know that we discussed that Exxon would never be thought to be religious, that a large for-profit nonreligious corporation was not going to have the benefit of RFRA. We knew that was the deal that was cut.

The Dictionary Act defines the terms in every federal statute, and they had chosen “person” as the rights-holder in RFRA. [The 1871 Dictionary Act instructs courts to apply definitions of certain common words (including “person”) and basic rules of grammatical construction “unless context indicates otherwise.”]

In the Dictionary Act, a corporation is a person. It was either brilliant drafting or blind drafting. Justice Scalia’s favorite resource is a dictionary, and this was the Dictionary Act. So we get a ruling that says this humongous corporation with all of its political power has the right to refuse to provide contraception that it believes is an abortifacient, which is not scientifically an abortifacient.

It has the right not to include four types of contraception in its coverage. Let me explain how RFRA gets you to that unbelievable result, which in my view is a violation of women’s civil rights against gender and religious discrimination. They are being discriminated against because they don’t believe what their employers believe.

RFRA is the concoction of a legal standard that has never existed before, but it’s all terminology that has been pasted together from Supreme Court constitutional cases. So the first thing that has to happen is that the believer has to prove that there’s a “substantial burden” on their conduct. Normally, “substantial” has had quite a bit of bite to it. It means substantial, not de minimis.

In this case, an employer who’s putting money into fungible funds, will never know if an employee ever uses any contraception, let alone the types the employer doesn’t like. That’s because of the HIPAA [federal privacy] rules. This is about five times removed from any violation of Hobby Lobby’s religious liberty.

But five members of the Supreme Court believe it’s a “substantial burden.” I’ve litigated religious land use cases for cities all over the country. I have never seen substantial burden interpreted in that attenuated way. Then the court asks, “Well, does the government have a compelling interest in women having cost free access to contraception?” And the majority can’t bring themselves to say that there is a compelling interest in that. They say, “We’ll assume it.” Because they get to the part of the test that it is typically impossible for the government to win — the “least restrictive means” test.

RFRA is contagious

What is the “least restrictive means” for women to have cost-free contraceptive coverage that won’t substantially burden the Greens’ belief that four types of contraception are abortifacients when they’re actually not? That’s the question, and the court has the answer. The least restrictive means is for the government to pay for it. That’s not in the statute. The government has not allocated any funds to cover what the Greens aren’t paying for, or what the other 49 for-profit corporations are asking for since Hobby Lobby was decided.

These corporations are saying they have the right not to provide health care that serves the compelling interests of women’s health. Here is the single most important point I’m going to make tonight, by far: RFRA is not establishing a constitutional rule. It’s not a constitutional standard. It’s just a statute, so when you see talk about RFRA, what you see is politicians saying, “I’m in favor of religious rights,” it’s statutory rights, not constitutional rights.

The First Amendment stands for this: Each of us has a right under the Constitution to be free from discrimination from the government based on our beliefs and to have the government treat us like everybody else. If we engage in conduct, and anybody else does the same thing, we’re all treated alike. If the government discriminates against us, the First Amendment kicks in big time.

Believers also have a statutory RFRA right. And the RFRA right is sui generis, it’s made up, it’s on its own and it needs to be repealed. It is the wrong standard.

There are also some rather entertaining RFRA cases, if you have a really sick sense of humor and nothing else to do. The fundamentalist Mormons [FLDS, led by imprisoned “prophet” Warren Jeffs] argued that they can’t testify about their practices in a proceeding involving an alleged violation of federal child labor laws, and the court agreed.

Another RFRA wrinkle is that Gitmo detainees see Hobby Lobby as a wonderful opening, not because they’re for-profit corporations, but because they think that “person” must also include nonresident detainees. So they’ve asked for the right to engage in communal prayer, which is not permitted at Gitmo because that’s where they “collude,” that’s where they pass messages. They have also asked for a right not to have a female guard because it’s against their religious beliefs to have a woman touch them.

The good news is that this is just a federal statute. The second good news is that it’s unconstitutional to apply it to the states. Even the state RFRAs are not bound by Hobby Lobby. It’s a federal interpretation of a federal statute.

What that means is that a state right now, especially if it does not have a RFRA, could pass a law that says every female employee has a right to contraceptive coverage. If she doesn’t get it, it’s a violation of her civil rights. If a RFRA-less state were to do that, all the Hobby Lobby stores in that state would have to provide their employees with contraceptive coverage.

What’s ahead?

What’s next is finally what I’ve been hoping for years. After the court declared in Boerne that RFRA was unconstitutional and I saw them going back to Congress, I started calling groups to say you have no idea what you are up against and you need to start fighting it now. There is a statute that is going to undermine your interests and you need to do something about it: RFRA.

I called groups like the National Organization for Women. They hung up on me. You know, at the time I sounded like a lunatic, right? A rational lunatic, but a lunatic. Now I don’t. Now I’m right.

Finally, the ACLU, People for the American Way, Americans United, Freedom From Religion Foundation, reproductive rights groups, women’s rights groups — including NOW — children’s advocates, are all joining together to push back against the RFRAs.

I thought the best question this afternoon was, “What is FFRF doing with other groups?” It is going to take that kind of coalition of Americans to either repeal the RFRAs or to inflict deaths by a thousand amendments.

It ought to be clearly stated in every RFRA that it does not trump civil rights, whether they are rights for women, race or the LGBTQ. How about a line in each RFRA that says it has no effect in cases involving the death of children, the abuse of children or the neglect of children? Let religious entities defend the right to do that.

Finally, there are two things that need to happen. The attorneys’ fees provisions should be repealed. They perversely force taxpayers to underwrite special treatment of religious entities and believers when they harm others like Hobby Lobby has. There was a move starting last spring [2014] to enact state RFRAs that would permit private businesses to invoke RFRA against their customers. So the pizzeria that doesn’t want to serve a homosexual could deny service. Or, the white supremacist who owns a tavern would be able to keep minorities out, or the black supremacist would be able to keep whites out.

That’s the bill that Arizona was considering and that Gov. Jan Brewer vetoed. Why did she veto it? Because the National Football League and Major League Baseball threatened to pull their teams. Unfortunately, Mississippi did enact such a law.

You need to understand, however, that blocking this expansion of the RFRAs to private disputes is not enough to redress how RFRAs undergird discrimination. [After my talk, Indiana enacted a RFRA that applied to private transactions, and then “fixed it” but few understand that the “fixed” RFRA still permits discrimination by employers (like Hobby Lobby) against their employees based on religious belief.]

Discrimination against religion, discrimination against atheists, discrimination based on race, gender and sexual orientation have no place in our society. I hope we’ll wipe out RFRA.

Thank you again for this extraordinary honor.

Freedom From Religion Foundation