RFRA and Race

by Ramesh Ponnuru

Critics of the Arizona bill — and of the lawsuits about the Obama administration’s contraceptive/abortifacient mandate — often use a racial analogy against the idea of religious exemptions. If you allow people to flout generally applicable laws on religious grounds, they say, why wouldn’t you have let people who believed in racial segregation for religious reasons — and there were such people — get out of the civil-rights laws? I have a bit more to say about this argument in the next issue of NR, but there’s an additional point I didn’t get into the article. Religious exemptions from federal law have been part of the legal landscape for decades. The Supreme Court insisted on them as a matter of constitutional law from 1963 to 1990, and Congress made them part of statutory law with the Religious Freedom Restoration Act in 1993. (As Rich Lowry notes below, the Arizona bill was largely based on the federal RFRA, the key difference being that the state bill made explicit a few points that were arguably implicit in the federal law; and the argument I’m concerned with here does not turn on that difference.)

In all this time, has anyone ever won a religious exemption from a law against racial discrimination? Has anyone even pursued a claim for one?

Update: Jim Copland reminds me that Bob Jones University did pursue such a claim, but the Supreme Court rebuffed it. That was at a time when the basic protection of a RFRA was part of constitutional law and not just statutory law.