In 2014, activists in Michigan and Arizona successfully lobbied against proposed Religious Freedom Restoration Acts (RFRAs). Proponents of the laws were caught off guard, never expecting such fierce opposition to the usually popular legislation. RFRAs’ supporters must learn from this year’s stiff opposition in order to ensure that they are better prepared to defend the laws in the future.
In Arizona, RFRAs’ opponents tarnished the proposed law by misleading the public into believing that, if it passed, religious business owners would suddenly refuse to serve homosexuals. Opponents of Michigan’s proposed statue, emboldened by the successful strategy in Arizona, took this false and incendiary rhetoric to an entirely new level. They absurdly claimed that if Michigan adopted the RFRA, emergency medical technicians (EMTs) who were religious could refuse to treat gays and lesbians who lay suffering on the street.
RFRAs’ supporters must reframe the debate by demonstrating that the critics’ claims are untrue or wildly exaggerated and by providing the public with specific examples of the people protected by RFRAs. An important first step is to understand why states are passing RFRAs and what those laws are intended to accomplish. In 1990, the Supreme Court determined that “generally applicable” laws that incidentally burden the free exercise of religion are not subject to the full protections of the First Amendment. The RFRA, as its title suggests, was intended to “restore” the robust protections that most people thought had applied to religious liberty. The law won strong bipartisan and public support, passing both houses of Congress with only three dissenting votes. At that time, no one imagined that the law might function in the manner described by its recent critics.
In 1997, the Supreme Court decided that the constitutional separation of powers prevented Congress from applying the RFRA to state laws. Therefore, since 1997, people’s religious liberty is less protected from burdensome state laws than from identical federal laws. In order to remedy this imbalance, states began to pass statutes substantially similar to the federal RFRA.
In the early days, these state RFRAs also passed with little or no controversy. Illinois adopted a state RFRA in 1998 with near-unanimous votes in both houses. Today, 19 states and the federal government have RFRA statutes. Cases decided pursuant to these statutes provide actual evidence about how these laws do and do not function.
No state or federal court has ever held that RFRA generally entitles religious business owners to refuse service to gay people. In the 20 years that these laws have existed, there is simply no record of successful cases that would justify the critics’ concerns.
It is predictable that very few, if any, cases would involve arguments that RFRAs allow businesses to refuse to serve gay people. Such a claim simply does not reflect the views of the vast majority of religious Americans. In about half the states in the country, religious business owners serve gay people in the absence of any legal compulsion to do so. Such people have the exact “license to discriminate” that RFRA opponents fear, and yet they choose not to discriminate. There is no reason to believe that religious business owners in states with existing nondiscrimination laws would behave any differently than those in the other half of the county simply because their state adopted an RFRA.
A few prominent cases have occurred in which religious people have claimed a religious obligation to refrain from participating in same-sex weddings, but that is logically distinct from claiming a broad right to discriminate. In fact, the religious people involved in those cases specifically disclaimed a general religious obligation to discriminate against gays. If there is very little evidence that a meaningful number of religious business owners seek to deny general service to gays, there is absolutely no evidence for the even more extreme and absurd claim that religious EMTs want to let gay people die on the street.
Even if a small number of misguided religious outliers claimed that RFRAs allowed them to broadly deny services to gays, it is very likely that they would lose in court. Michigan’s RFRA, like all other RFRAs, does not exempt religious people from a law that is narrowly tailored to further a compelling governmental interest no matter how substantially that law burdens their exercise of religion.
Both of the opponents’ fears highlighted above would probably fall within the exception. There is no doubt that a law requiring EMTs to provide life-saving care to anyone in need would meet the narrow-tailoring and compelling-interest requirements. The Supreme Court has noted, and it is obvious on its face, that states have a compelling interest in protecting the lives and health of their citizens. There is no readily apparent less restrictive alternative to that law.
It is very likely that a statute prohibiting discrimination against gay people in public accommodations would also survive within RFRAs’ exception. The Supreme Court has found that states have a compelling interest in eliminating discrimination in public accommodations. A handful of courts have found that states have a compelling governmental interest in prohibiting discrimination on the basis of sexual orientation.
It is impossible to know for certain how a court would decide this question, because, as noted above, virtually no one has ever tried to use any RFRA in this manner. Therefore, the strongest claim the critics can honestly make is that if new RFRA laws pass, a very small number of people might attempt to use the laws to refuse service to homosexuals and will probably lose in court. That is far less impressive than the claims they have actually made.
Merely pointing out that RFRAs cannot possibly cause the harms posited by its adversaries is insufficient to convince the public that such laws are worthy of support. RFRA advocates must also demonstrate that religious-liberty statutes have provided tangible benefits to real people. Fortunately, there are a sizable number of cases that establish this point. Federal courts have applied RFRAs in many circumstances, including to protect the right of members of a Brazilian church to possess plants necessary to make sacramental tea; Muslim firefighters’ right to wear beards that do not interfere with their equipment; Jehovah’s Witnesses’ right to maintain government employment despite refusing to take a loyalty oath; Native Americans’ right to wear long hair in school; and Rastafarians’ right to not be fired by the government for having a traditional haircut.
State courts have also applied RFRAs to protect their citizens. The Virginia Court of Appeals protected a Native American couple’s right to possess bird feathers used in prayer. The Tennessee Court of Appeals held that the state couldn’t autopsy a man over his family’s religious objections. The Ohio Court of Appeals noted that a statute banning a Sikh man from carrying a ceremonial sword for religious reasons would face scrutiny under a religious-liberty statute.
Religious-liberty statutes are particularly important to religious prisoners. Courts have found, for example, that such laws require Jewish prisoners to be provided kosher food; Muslim prisoners to be provided halal food and access to prayer oils; and Native American prisoners to wear religious clothing and have access to certain items used while praying.
Next year is likely to include more debate over the propriety of state RFRAs. Proponents need to be ready to force opponents to answer why they are more concerned with far-fetched hypothetical harms than with the real benefits RFRAs have provided for 20 years.
— Howard Slugh in an attorney practicing in Washington, D.C.