Bench Memos

One Lesson from Arizona

A lot of lessons (some sound, others not) will surely be drawn from the wild misrepresentations of Arizona’s bill that would have made minor amendments to its Religious Freedom Restoration Act and from Arizona governor Jan Brewer’s decision to veto the bill. I’d especially recommend Mollie Hemingway’s “Dumb, Uneducated, and Eager to Deceive: Media Coverage of Religious Liberty in a Nutshell.

One matter I’d like to address briefly is whether the better way to protect religious liberty is (1) by following the RFRA model of setting forth general standards for courts to apply, or (2) by spelling out, with as much precision as possible, specific conduct that is protected.

The Arizona experience confirms my sense that the second option is preferable. Let me explain why.

Under the standard RFRA model, a government cannot substantially burden a person’s exercise of religion unless it can show that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of advancing that interest. That model restores by statute the Free Exercise test that prevailed until the Supreme Court’s 1990 decision in Employment Division v. Smith.

I’m strongly supportive of state RFRAs, but enacting more of them in the current environment will be difficult. There is ample reason to believe that any RFRA would suffer from the outrageous media distortions and demagoguery that plagued the Arizona bill.

To borrow one of Hemingway’s examples, the New York Times baselessly contended that the Arizona bill would have “allowed business owner[s] to refuse to serve gay people and others if doing so ran counter to their religious beliefs.” In other words, the media can be counted on to obscure beyond comprehension the fundamental distinction between being able to assert a claim under RFRA and winning that claim.

Further, what many consider a virtue of RFRAs—that they don’t spell out which claims will win or lose but instead leave that to the courts to sort out—is politically a huge vulnerability: When opponents trot out their parade of horribles, it’s not a simple matter for supporters of RFRA to demonstrate that the parade is farfetched.

Conversely, precisely because a RFRA doesn’t guarantee any particular victory, it’s not clear whether and how it will actually enhance religious liberty.

To make my point more concretely, let’s say that the legislative goal is to protect photographers who have religious objections from being compelled to offer their services for same-sex ceremonies (whether or not those ceremonies are recognized under state law). If the legislature tries to achieve that limited goal via a RFRA, it opens itself up to objections and distortions that RFRA would go much further than that. At the same time, it’s far from clear that courts would construe a RFRA to provide that protection to photographers.

By contrast, legislation that confers only that specific protection is much less vulnerable to being construed more broadly. Further, if, as of course often happens in the drafting process, bill language is imprecise or open to a broader meaning, the simple answer is to amend it to eliminate the problem. Best of all, if the bill is enacted, the protection that it provides is clear and not subject (or at least far less subject) to being judicially interpreted into a nullity.

I’m of course not contending that it would be a simple matter to enact specific statutory protections. But how much better it would be to have the debate focus on the substantive merit of the proposed protections. Yes, media distortions would still afflict the process (as the recent Kansas experience amply shows). But, as compared with RFRAs, it ought to be far easier to get fairminded individuals—and even Republican politicians—to recognize the distortions.


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