I’m a huge admirer of Andy McCarthy’s work, and there’s much in his recent NRO essay, titled “The Controversy in Indiana Is Trumped Up—but RFRA Isn’t a Good Law,” with which I agree. Indeed, my agreement extends beyond the parts of his essay that support the first half of his title and includes part of his criticism of RFRA laws. Among other things, I agree with him that RFRA laws do not provide a “knowable carapace of religious freedom” and that there “is no reason to believe that judges are better equipped to perform [the RFRA] balancing than legislatures” are. I thus agree with him that it would be ideal for legislatures to spell out the specific religious-liberty protections they deem appropriate. (I made a similar observation in point 3 of my Corner post last week on the Indiana fiasco.)
Here’s where I disagree with Andy. In the imperfect legislative world in which we live, I think that it’s important for the federal government and the states to have a RFRA law in place as a background default rule. The simple reality is that legislatures often fail to give sufficient forethought to the religious-liberty implications of their enactments and that they are inclined to steamroll minority religious views. The same is even more true for bureaucracies implementing legislative enactments. The limited (and, to be sure, uncertain) protections that RFRA laws provide are valuable as a check on unreflective majoritarianism.
That said, I believe that legislatures should be more vigilant in adding to, or subtracting from, the baseline RFRA protections in specific contexts. (I’ll note that Connecticut, which has had a RFRA law since 1993, added some specific religious-liberty protections in the marriage context at the same time that it redefined marriage to include same-sex couples. Similarly, Utah added some specific religious-liberty protections in conjunction with its recent enactment of a law against sexual-orientation discrimination in employment and housing.) Andy hits a false note when he observes:
“Furthermore, if a legislature strikes the wrong balance, its statute can be amended with comparative ease; reversing a court’s error in defining the parameters of a constitutional right is extraordinarily difficult.” [Emphasis added.]
Because a RFRA law is statutory, “reversing a court’s error in defining the parameters of a [RFRA] right” can be done with the same “comparative ease” as any other statutory amendment. In other words, if a court, in the judgment of the legislature, reads a RFRA law too expansively or too narrowly (whether generally or in a specific context), the legislature may override the court prospectively.
In short, the real danger that I see in a RFRA law is that a legislature, having enacted one, may complacently assume that it’s done all the work that needs to be done in the religious-liberty realm. A legislature should instead continue to give careful consideration both to providing clear and specific guarantees of religious freedom in particular contexts and to carving out exceptions to RFRA where warranted.