RFRA, RFRA+ and Anti-Discrimination Laws

I’m seeing so much oversimplified and false information coming out about the various state Religious Freedom Restoration Act (RFRA) laws being considered, especially with all the furor over Indiana’s new version, that I thought I’d give a long, detailed explanation of what’s really going on.

First, let’s start with the federal RFRA. What that law does is allow individuals, religious organizations and (now) closely-held corporations ask a court to grant them an exemption from a generally applicable law. If they ask for such an exemption, they have to show that the law constitutes a “substantial burden” on their free exercise of religion. And if they do so, the government must show that the law is the “least restrictive means” of achieving a “compelling governmental interest.”

Almost 20 states had, over the last couple decades, passed their own versions of RFRA, but they were mostly just carbon copies of the federal law. But over the last year or so, mostly in response to the Hobby Lobby case and various cases involving anti-discrimination laws and same-sex weddings, many states are considering or have passed new versions that I’m going to label RFRA+ laws. That is, they are standard RFRA laws with one or two additional provisions that fall into a couple categories:

The first would add what is often referred to as a “conscience clause” exemption, which would apply to private businesses (RFRA applies only to exemptions from government action, not business rules) and allow their employees to demand exemptions from rules that might force them to violate their religious beliefs. For instance, an employee of a pharmacy might demand an exemption from having to fill prescriptions for birth control because, as a Catholic, they think birth control is sinful. Or a Muslim employee of a grocery store might demand an exemption from having to handle pork or alcohol (there are already such cases going on in various places). Demanding them doesn’t mean they would get them automatically, however. They would have to petition a court to grant them such an exemption and the court would then have to determine whether to do so.

The second would apply essentially the same rule to business owners themselves, allowing them to refuse service if it violates their religious beliefs. These are a response to the cases around the country where florists, bakers and photographers have been forced by state law not to discriminate on the basis of sexual orientation (some laws have such protections and some do not; Michigan does not). Some would apply only to same-sex weddings, while others have broader language that might allow any type of religion-based discrimination.

So what about the Indiana law that was just passed? It’s RFRA+ with the second type of additional provision, but it does this in an unusual way. Josh Blackman, an Indiana attorney, explains that it does so by allowing the RFRA legal standard to be used as a defense in a private civil suit, like one that might be filed in an anti-discrimination suit:

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

In other words, the law provides a defense against a private discrimination suit. For example, Jill and Jane Doe sue a photographer for failing to photograph their wedding under a local non-discrimination ordinance. The photographer than raises the state RFRA as a defense. Even though the government is not a party, RFRA can be raised as a defense in the judicial proceeding. The court would have to determine whether the application of the non-discrimination ordinance substantially burdens the photographers exercise of religion.

But here’s the thing, though. I know in light of all the rhetoric flying around, this may shock you but it’s true: This new law changes nothing in terms of anti-discrimination law. Indiana already did not protect against anti-LGBT discrimination, so a lawsuit against a company for discrimination against an LGBT person would be dismissed anyway. And if someone tried to claim an exemption from any of the other usual categories covered by anti-discrimination laws — race and gender, especially — it’s virtually inconceivable that a court would grant an exemption from such laws. In 22 years of RFRA laws, no court has ever done so and innumerable courts have ruled that the government has a compelling interest in preventing discrimination. So honestly, the new Indiana law changes pretty much nothing for residents of that state.

Blackman also points out something I did not know: Some federal judicial circuits have already allowed the federal RFRA to be used in civil suits that don’t involve government action. The 2nd, 8th, 9th and DC circuits have allowed that, while the 6th and 7th do not. The others have not ruled on that question and the Supreme Court has never taken up the issue. It would certainly be interesting to see what would happen if they did. Also interesting is that the Obama DOJ has previously taken the position that RFRA can be used in civil suits to which the government is not a party.

Other states are considering different versions of RFRA, and we need to examine the actual text to know what it would do. The one under consideration in Mississippi, for example, is close to the federal law but requires only that the law be a “burden” on religious freedom, not a “substantial burden.” That’s an important change in the text that could have a major effect on cases brought under that law. The point is that you actually have to look at the text, not the political rhetoric, to understand what a law does and does not do.

And as I’ve pointed out many times, I think all RFRA laws, whether of the older variety or the RFRA+ variety, are unconstitutional. It’s incredibly unlikely that any court would rule that way at this point, but I think they’re a clear violation of the Equal Protection Clause of the 14th Amendment because they set up a two-tiered system of law, one for the religious and one for the non-religious.

Update: I should have added some political analysis on top of the legal analysis. Politically, the massive backlash against Indiana over this law is having its desired effect. Other states have seen the financial backlash as companies have called off expansions and organizations have canceled conventions in Indiana and they are now starting to table their pending RFRA laws, or reconsider them, or add language that specifically says they can’t be used to justify anti-gay discrimination. That’s an important result.

So does engaging in hyperbole and hysteria have a place? I’m still very uncomfortable with it and I feel absolutely compelled to be honest. I have no intention of doing anything different in the future. If I did not do so, I would lose all credibility in criticizing the right when they do it. I would also lose any right to consider myself a humanist, with its insistence on critical thinking and the use of reason. Your mileage may vary, but I’m not going to diminish my intellectual integrity just because we have a single example of the usefulness of dishonesty. I do not believe that the ends justify that particular means.

". . . to avoid politicizing school events . . . Hey, here's an idea: ..."

Catholic School to Punish Students for ..."
""...not saying he didn’t do it but that it was okay that he did for ..."

AL Cop: We Were Told to ..."

Browse Our Archives

Follow Us!


What Are Your Thoughts?leave a comment
  • http://artk.typepad.com ArtK

    I read somewhere (sorry, no citation available right now) that the Indiana law was also very broad in how it defined something as being part of one’s religion. My understanding of the federal law is that the religious belief had to be substantial in some fashion, while the Indiana law amounted to “well, I think that it might be against my religion.” Do you know of any good articles that address that issue?

  • grumpyoldfart

    This new law changes nothing in terms of anti-discrimination law.

    The Christians will have their lawyers working flat out looking for ways to use the law to their advantage and I have a feeling they will succeed.

  • Reginald Selkirk

    Apologists for the Indiana law are going to push for another law to “clarify” its intent. I don’t see how a law that is so unclear that it needs another law to explain it can be a good law.

  • Michael Heath

    Has the University of Kentucky spoke out against this new law? I’ve been able to find spokespeople for the other three Final Four teams condemning the new law, but not the UK.

  • John Pieret

    Indiana already did not protect against anti-LGBT discrimination, so a lawsuit against a company for discrimination against an LGBT person would be dismissed anyway.

    That’s not correct. A number of cities, including Indianapolis, have anti-discrimination laws that include protection for gays. A lawsuit and/or a violation brought under the local ordinance could (potentially) be dismissed because of the RFRA in question.

  • themadtapper

    That’s not correct. A number of cities, including Indianapolis, have anti-discrimination laws that include protection for gays. A lawsuit and/or a violation brought under the local ordinance could (potentially) be dismissed because of the RFRA in question.

    That’s one of the points of these laws. They’re preemptive measures to head off laws that would protect LGBT rights. There have been interests in multiple states where state legislatures have overturned city ordinances protecting LGBT folks.

  • Reginald Selkirk
  • raven

    Indiana and other states just legalized hallucinogens in religious services.

    A lot of religions use drugs like LDS, cannabis, peyote, psilocybin mushrooms, and Ayahuasca as sacraments. These were more popular during the hippie era. And, weird as it seems to our modern eyes, this is a very ancient practice, going back millennia.

    The court cases using RFRA have been all over the place. But one church has the legal right to use Ayahuasca, an Amazonian drug containing DMT.

    Who knows what else will fall under RFRA? Coming to your neighborhood, a group that practices animal sacrfice, also an old rite and the basis of Second Temple Judaism.

  • Alverant

    #7 Because you should expect professionals to ACT professionally. If they intentionally fail to properly fulfill their side of a contract, they can be taken to court.

  • http://www.gregory-gadow.net Gregory in Seattle

    It has been my understand that the Indiana law essentially gutted all anti-discrimination laws in the state: if you can come up with a tract written by someone representing your religion that says, “Hate on that group,” then you are free to safely ignore that group’s civil rights.

    I suspect that the law will only be applicable to people holding the right religion, and that the promised “clarification” will greatly curtail the rights of, say, Muslims from having to serve Christians. And as usual, atheists will be flat-out denied access to the law.

  • wreck

    When I moved to Illinois, I was told that when traveling to Indiana to remember to set my watch back. Fifty years. Still good advice.

    I don’t know how specifically the new law changes things, but the perception seems to be that it legalizes discrimination against gay people. The news coverage in the Chicago Tribune has been totally negative regarding the law. Not just columnists and opinion pieces, but news and business articles too. I was glad to see reports of companies considering taking their business and/or conventions elsewhere. There are also lots of business displaying “We Serve Everybody” signs in their windows. Even the NCAA, not an organization one would look to for moral guidance, had a negative reaction. Maybe losing money will convince these goobers to revisit their legislation.

    It should also go without saying that if your religious beliefs require you to treat some people like second class citizens, then your religious beliefs are fucked up.

  • Alverant

    Also Reginald, what if you don’t know about the person’s views until after you hired them and it’s too late to find a replacement for the event for a price that’s in your budget? Weddings tend to happen during the summer. A photographer that backs out at the last minute is going to leave the wedding party in a bad spot. Worse, if you give them a bad review online they can claim you’re persecuting them for their religion.

  • D. C. Sessions

    I suspect that the law will only be applicable to people holding the right religion, and that the promised “clarification” will greatly curtail the rights of, say, Muslims from having to serve Christians. And as usual, atheists will be flat-out denied access to the law.

    Sort of like “Stand Your Ground” laws: they are a complete defense when a white shooter kills a black target, but of no use when a black homeowner kills a white attacker.

  • raven

    Re #8 Laugh all you want.

    addicitinginfo. com

    Indiana Religious Freedom Law Unwittingly Ushers In First Church Of Cannabis For Weed Worshipers Author: Stephen D Foster Jr March 30, 2015 12:04 am

    Oops. Indiana Governor Mike Pence is probably facepalming right about now.

    Due to Republicans and their discriminatory “Religious Freedom” law, marijuana users will now be able to build a mid-west sanctuary where they can light up all the joints they desire without fear of harassment by the police. And there isn’t a thing the police can do about it because they would be violating the religious beliefs of a group of people, which is now protected by the law.

    and

    Bill Levin is the founder of the First Church of Cannabis and he filed paperwork with the Indiana Secretary of State to open the church before the ink from Pence’s signature was even dry on the RFRA he signed on Thursday. And it was a Mary Jane miracle as he received approval from the state, which he immediately announced on his Facebook page.

    There really is a First Church of Cannabis. And they really are…persecuted. Or were. They’ve already gotten approval in Indiana.

    Whatever. I can’t say I’m interested in getting up early to use cannabis on Sunday mornings. But it is likely a more interesting group than your standard church goers.

  • Paul Neubauer

    The best picture I’ve found of the front page of today’s Indianapolis Star is actually on the Washington Post’s site: http://www.washingtonpost.com/blogs/the-fix/wp/2015/03/31/the-indianapolis-stars-front-page-editorial-got-a-lot-of-people-on-twitter-talking-about-the-indianapolis-star/

    The entire front page is an editorial and pretty much everything below the masthead and above the fold is a big black box with the words “FIX THIS NOW”

    Somehow I suspect that our “esteemed” governor is feeling more “steamed” (or perhaps “broiled” or “grilled”). I feel so sorry for him. NOT!

  • teele

    The Indiana law does not, in fact, specifically mention same-sex marriage, although looking at the picture of the small party allowed at the governor’s signing party certainly indicates that the law is aimed straight at the heart of the LGBT community. People arguing over this law focus on photographers and florists, but this law could guarantee that a paramedic could refuse emergency treatment on an obese person because gluttony is one of the seven deadly sins. Suddenly not so funny or easy to dismiss as no big deal. The law is so broad that the consequences are truly not foreseeable at this point.

  • Jordan Genso

    And if someone tried to claim an exemption from any of the other usual categories covered by anti-discrimination laws — race and gender, especially — it’s virtually inconceivable that a court would grant an exemption from such laws.

    But what about the argument that discrimination against a same-sex couple is discrimination based on gender?

    Let me put it this way — would a baker be allowed to refuse to bake a wedding cake for an inter-racial couple? Or would that be considered discrimination on the basis of race, since theoretically the baker wouldn’t be discriminating against them if one of them had a different race (so if it’s a black man and white woman, change either of their races to be the same as the other, and the baker wouldn’t object)?

    The exact same analysis could then be applied to a same-sex couple. If it’s two women who are trying to get married, theoretically the baker wouldn’t be discriminating against them if one of them had a different gender, which means it is discrimination on the basis of gender (which is a protected class of course).

  • comfychair

    Has anyone found a legit explanation of how they are allowed to take a not-completely-unreasonable “My religion forbids homosexuality/using birth control” and twist it around until it turns into this utter bullshit of “My religion forbids baking a cake for homosexuals/filling a prescription for birth control pills”?

  • neonsequitur

    Thanks for the legal and political analysis, Ed. For the sake of completeness, you might want to add some moral analysis as well. I’d suggest starting with “Discrimination sucks no matter how these ass-wipes justify it.”