There have been countless Big Lies spread by individuals and groups throughout human history. Our species seems to have a proclivity for prevarication. Some of the biggest ones in the last couple millennia were intended to promote religious belief, because that was a powerful lever to gain political power. Lies committed to gain political power must go back to the days when men wore loincloths and carried clubs…and women tried to avoid the threats of both.
The current Big Lie is that the election was stolen, and Trump actually won, but another whopper that was spread a few decades ago equals that one, and arguably even exceeds it in the magnitude of its damaging effect on our democratic process. The long name for it is Religious Freedom Restoration Act, or RFRA for short. The RFRA did not “restore” any religious rights. Instead, it created some new ones…rights granted only to religious believers. Doesn’t that violate the First Amendment of the Constitution? According to the Legal Information Institute sponsored by the Cornell Law School:
“The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.”
Read that last sentence again, and think about the RFRA. The Civil Rights Act of 1968 prohibits discrimination against “protected groups.”[i] The RFRA modifies that prohibition, allowing religious believers to discriminate against individuals based on their religious beliefs. In effect it grants special rights to religious believers that are denied to nonbelievers. Why isn’t that a clear-cut violation of the Establishment Clause?
Proponents of the RFRA claim that the Free Exercise Clause in the First Amendment overrides the Establishment Clause, even though there is nothing in the words to suggest that. In fact the legal history of interpretation of the Free Exercise clause makes it clear that exercise of one’s religious beliefs is free insofar as it does not “harm” others.[ii] It would be difficult for anyone to claim that businesses that have denied their services to LGBTQ individuals, or pharmacists who have refused to dispense contraceptives based on their religious beliefs, have not harmed many people.
A recent article in Free Inquiry(FI) magazine[iii] tackles the RFRA. it refers to it as the “toxic” RFRA, and claims that it “did not restore actual case law. Rather, it introduced a license to lawlessness.” Much of the information in this essay is taken from the FI article.
The original law, passed in 1990, was ruled unconstitutional by the Supreme Court. which held that the standard in the RFRA was not the First Amendment standard. The majority opinion, written by justice Anthony Kennedy asserted that its
“[s]weeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.”
Sweeping, indeed. The Court went on to say the RFRA led to a “likelihood of invalidation” of laws that were not discriminatory but merely generally applicable.
So, what did the religious rights folks do? They went back to Congress for a second try. They called it the Religious Liberty Protection Act. New name, same lies. In fact, it is referred to as RFRA II. That has been challenged in cases that ended up at the Supreme Court, but with its current right wing majority, those challenges have been unsuccessful.
The article concludes that
“The RFRA has created a cognitive dissonance in our culture that is downright dangerous. The RFRA rhetoric and its misleading title have led to a widespread, but false, assumption that RFRA’s sui generis statutory rights are constitutional rights,
This is, in fact, the first Big Lie: that RFRA was a mere “restoration” of constitutional standards and that those standards create a preferred citizen class of religious believers who need not worry about the pesky law. RFRA was a radical change cloaked in false cultural presuppositions hidden by a misleading title and weaponized by members of Congress who couldn’t resist stepping into the Court’s domain. RFRA advocates—and this applies to the federal version as well as the state counterparts—want us to believe that the Constitution sanctions treating religious believers as above the law. No, it doesn’t, and it never should.”
The final paragraph of the article sums up the horrific damage that Big Lies can inflict on a society:
Just as millions of Americans have been misled into thinking that the 2020 election was “stolen” from Donald Trump, the same constituency was willingly misled into believing that the Constitution grants them a right to avoid all laws and a transcendent right to impose their faith on others, including in the workplace and the marketplace.
Big Lies can cause big problems.
[i] Originally, the list of protected groups did not include LGBTQ, but many states have added that.
[ii] Harm in this case is a legal “term of art” meaning any wrong or harm done by one individual to another individual’s body, rights, reputation, or property. Any interference with an individual’s legally protected interest.
[iii] The article is in the June/July 2021 issue, titled: “The Evangelization of Lawlessness: RFRA Was the First “Big Lie” It is available at: