Friday, March 6, 2015

Scare Tactics Employed Against the Religious Freedom Restoration Act Aren't Supported by the Case Law

Opponents of Indiana adopting the Religious Freedom Restoration Act have labeled it a "license to discriminate" and suggest the law would invalidate all sorts of laws when litigants claimed a religious defense.  The case law demonstrates those claims are not only exaggerated, they are downright false.

Up until 1990, the courts employed what is known as the Sherbert test for examining whether laws violate the First Amendment Free Exercise (of Religion) Clause.  That test said that if a litigant demonstrates that a law "substantially burdens" the person's religious beliefs, government must prove that it has a compelling interest for the law for the law to be upheld when faced with a free exercise challenge.

State Senator Scott Schneider is one
of the authors of the Indiana RFRA
In 1990, the United States Supreme Court handed down the Employment Division v. Smith case. Writing for the majority, Justice Scalia tossed out the Sherbert test, replacing it with a new test which held that for laws that are facially neutral and generally applicable, there would be no free exercise violation.  Even if the law was not found to be neutral and generally applicable, the law could still survive if the government could show a compelling interest in passing the law.

The decision in Employment Division v. Smith outraged people across the political spectrum. A broad coalition of conservative and liberal groups (including the ACLU) pushed for religious freedom legislation that would restore the Sherbert test.  Democrat Chuck Schumer (D-NY) introduced the Religious Freedom Restoration Act into the U.S. House.  (Schumer later was elected Senator).  The bill passed  that chamber unanimously and then the U.S. Senate by a 97-3 vote.  President Clinton signed the bill into law in 1993.

What the federal RFRA did was to restore the Sherbert test with one slight addition on to the end of the test, namely that the law be "the least restrictive means of furthering that compelling government interest." 

In 1997, the Supreme Court upheld the RFRA as applied to federal laws, but found that federalism prevented its application to state laws. Instead states had to adopt their own RFRAs.  Since then 19 states have done so.  In those states that don't adopt the RFRA, the Employment Division v. Smith test applies instead of the Sherbert test.

The pre-RFRA Sherbert test, which employs the compelling government interest test, didn't allow for widespread discrimination based on religious beliefs.  The Court found a compelling state interest in maintaining the tax and Social Security systems, upholding military conscription laws, and providing a uniform day of rest.   The Court declined to find a compelling interest in only limited circumstances such as the school attendance of Amish children to age 16.

Even though the RFRAs have added one additional part of the test - the least restrictive means requirement - they have also proven not to sanction widespread discrimination as detractors (who were once on the other side) now claim.  Several states (California, Florida, Alaska, Wisconsin, Illinois) have dealt with the application of the RFRA to state statutes where Christian landlords did not want to rent to unmarried couples who they believed were "living in sin."  Four of the states upheld the law, concluding there was no substantial burden on the landlord's religion.  In the fifth state, Illinois, the court found there was a substantial burden, but the City of Chicago had a "compelling interest in eliminating all forms of housing discrimination."  Thus, the state laws on housing discrimination were upheld in all five states.

A Florida court dealt with an Islamic woman who, pursuant to her religious beliefs, wished to wear a veil when her driver's license was taken.  The court found no substantial burden on the woman's religious liberties from being required to take the photo.

On the other side, RFRAs have been used to strike down the laws that required Amish horse-drawn vehicles display a particular warning sign (as opposed to alternatives) and have been used to allow religious organizations to show favoritism toward members of their faith in employment matters.

The bottom line is that Indiana RFRA would provide some additional protection for religious freedom, but it would most certainly not permit widespread discrimination as claimed by detractors.

See also:  Saturday, January 17, 2015, Senator's Religious Freedom Restoration Act Is Mainstream Legislation Modeled After Federal and Other State Laws


TableTopJoe said...

Mr. Ogden, while you make a very valid point, it seems disingenuous to write so extensively on RFRA caselaw without mentioning the most famous case yet associated with that law: the Hobby Lobby case where the Supreme Court ruled that a CORPORATION had a conscience that enabled the corporation to refuse to provide health insurance that provided for certain types of birth control, when the corporation provided such insurance as compensation to its employees.

It is almost like you're talking about A-Rod and forget to mention steroids, or the Peyton Manning era Colts and forget to mention all the first-round playoff losses, or the Cubs and forget to mention 100+ years without a championship.

I can't help but think that you're trying to hide the ball.

Paul K. Ogden said...

TableTop, I only looked at state court decisions as I only have so many hours in the day. Still I have absolutely no problem with the Hobby Lobby case. The ruling said that owners of that closely-held company (we're not talking Wal-Mart here) should not have to pay for abortifacient birth control that is very much against their religious beliefs. Remember Scalia who wrote Employment Division v. Smith which case threw out the Sherbert test necessitating Congress and now state legislatures to pass the Religious Freedom Restoration Act, supported the business owners in Hobby Lobby.