RFRA, RFRA+ and Anti-Discrimination Laws

RFRA, RFRA+ and Anti-Discrimination Laws March 31, 2015

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.

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