State legislatures in Iowa, Utah, and Georgia joined in the movement to pass state laws protecting religious freedom. These laws, commonly known as the Religious Freedom Restoration Act, should be fairly uncontroversial. They simply guarantee the free exercise of religion against government interference. However, the law has been labeled by opponents as an attempt to promote discrimination.
Searching the internet for news about the Religious Freedom Restoration Act, also known as RFRA, may yield results that lead you to conclude that a far-right religious conspiracy is afoot. Typical headlines include, “Human rights campaign slams West Virginia legislature for passing dangerous religious rejection bill in haste, calls on judiciary to veto bill” and “Religious freedom goes too far.” If left unchecked, the common good could be destroyed.”
To claim that protecting religious freedom is an attempt to promote discrimination against LGBT rights is to make a discriminatory claim about the First Amendment itself.
What is going on here? What exactly is RFRA? Is it a legitimate protection of religious freedom or a license to discriminate?
Let’s start with history. Held at the U.S. Supreme Court in 1990 Employment Department v. Smith Even if a law does in fact burden religious exercise, if the law is “neutrally neutral and of general application,” it is constitutional under the Free Exercise Clause of the First Amendment. I claim that there is. This decision effectively authorizes government actions that impose burdens on religious practices, as long as the burdens apply to religious and nonreligious people alike.
In 1993-1994, when Bill Clinton was president, Congress prohibited the government from imposing substantial burdens on individuals’ religious practices, even if they resulted from rules of general applicability. It responded by passing a bipartisan bill banning it. Governments would need to demonstrate that their actions advance a compelling national interest and are the least restrictive means of furthering that interest. This is the same standard that governments must meet when imposing burdens on fundamental rights under the Constitution (referred to as “strict oversight”).
In 1997, when the U.S. Supreme Court ruled that City of Boerne vs. Flores Island Arguing that the federal RFRA could not be applied to state law, each state responded by passing its own RFRA. Currently, 24 states have religious freedom laws.
So let’s be clear about what RFRA means for states. The First Amendment was designed to protect people’s right to freely exercise their religion. The Supreme Court in Smith held that “neutral” laws could burden the free exercise of religion and undermine the very intent of the U.S. Constitution to protect that free exercise. Therefore, RFRA is nothing but a statute to ensure adequate protection of the fundamental right to free religious exercise.
Charges that states’ efforts to pass RFRA represent a fundamental change in religious freedom law in America, or that such laws seek to discriminate against LGBT rights. The First Amendment is clearly intended to protect religious individuals and organizations from having their free exercise of religion endangered by government action.
Because the Supreme Court’s current precedent in Smith does not adequately protect the free exercise of religion, the state’s RFRA steps in to fill the gap. Her RFRA in the state is not new. They do not constitute any revolutionary new protections for religious practices. To claim that protecting religious freedom is an attempt to promote discrimination against LGBT rights is to make a discriminatory claim about the First Amendment itself.
The state’s move to pass RFRA is not a legal revolution, but a modest restoration of the fundamental right to the free exercise of religion. To oppose this restoration is to oppose the fundamental role of religion in society. Demanding that religious practices be free from onerous government measures is not discrimination. RFRA is not about discrimination. This is a distraction. RFRA is intended to protect the fundamental right to religious practice that is at the heart of the American experiment. If state governments were free to impose laws hostile to religious activity, Americans would no longer be free to practice their faith in public. It’s not “promiscuous.” It is un-American and threatens the freedoms our country was founded to protect.
Frank DeVito is an attorney and consultant at Napa Law Institute.
