RFRA Is A Dopey Law
July 28, 2016 at 4:25 p.m.
By Gary [email protected]
I have never seen this level of rancor and blatant misrepresentation over a piece of legislation – especially a law as inconsequential as this one.
The Indiana House and Senate passed the law. All Republicans voted yea. Gov. Mike Pence signed it Thursday.
I know what got this thing rolling. Folks are concerned gay marriage will be legal – which it almost certainly will be when the U.S. Supreme Court rules in June.
Certain vendors – bakers, wedding photographers, et. al. – were concerned that they might have to provide services to gay couples. They say that doesn’t line up with their religious beliefs.
This law is supposed to protect them from being sued. But if I had to bet, I’d say this law doesn’t really do that and is mostly a waste of time and effort.
The bill passed by the Indiana legislature is basically a boilerplate of the federal Religious Freedom Restoration Act of 1993.
I looked into that law and its application.
Interestingly, the 1993 RFRA grew out of an employment law case. A couple of Native Americans in Oregon got fired from their jobs at a rehab clinic because they tested positive for mescaline. They got the mescaline in their blood from peyote. They used the peyote in a religious ceremony, which has been a common practice of Native American tribes for centuries.
After they were fired they applied for unemployment benefits but were denied. They sued, claiming they were unjustly fired because of their religion. In the end, they lost and didn’t get unemployment benefits.
This case caused an uproar and was a catalyst for the 1993 RFRA.
Even more interestingly, the original RFRA was introduced by Chuck Schumer, a Democrat from New York. It was co-sponsored by Teddy Kennedy and Nancy Pelosi (both Democrats) and was signed into law by President Bill Clinton, also a Democrat. The RFRA was passed by a unanimous vote in the U.S. House of Representatives. In the U.S. Senate, there were only three dissenting votes.
What?
Finding that level of consensus in Congress is like finding a mermaid riding a unicorn.
Groups on both sides of the political spectrum – the American Civil Liberties Union, the Traditional Values Coalition, the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals – all supported the law.
RFRA was amended in 2003 to include only the federal government, so since then 20 states – most recently Indiana – have passed their own RFRAs.
I made the mistake of reading the law. It is mindnumbingly arcane, but here’s a portion I believe to be crucial:
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; (2) is the least restrictive means of furthering that compelling governmental interest.
Again, no legal scholar here, but it seems to me that the government still can burden your exercise of religion if it can show a “compelling governmental interest” to do so.
Over the years, the results of federal RFRA cases have not been stunningly successful. Largely, I think, because the law has that “compelling governmental interest” part in there.
Some examples:
A devout Quaker woman – an anti-war pacifist – sued the government arguing her religious beliefs precluded her paying federal income taxes because some of those taxes fund the military. The courts rejected that notion: “...while petitioner's religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest.”
Ah, yes, the compelling governmental interest.
In another federal case taxpayers sued in objection to the use of Social Security numbers. They argued those numbers were akin to the "mark of the beast" in the Bible. No good. Courts ruled there’s a compelling governmental interest in having a Social Security number.
In a state case in New Mexico – a RFRA state – a wedding photographer got sued for refusing service to a gay couple. She lost. She appealed and lost again. Seems prohibiting discrimination is a compelling governmental interest.
So what does this mean for Indiana? Will this new law allow people to freely deny services to gay people, immune from the threat of litigation?
I guess we’ll find out after somebody gets sued. Then the courts will decide if there is a compelling governmental interest in prohibiting discrimination based on sexual orientation in Indiana.
Doesn’t seem to me it’s a slam dunk for anybody wishing to deny services. Frankly, if I was a cake baker or a photographer, I wouldn’t risk it.
Beyond the issue of gay marriage, this notion that religious freedom is somehow under attack in Indiana is way overbaked. Pence and other lawmakers like to point to Notre Dame suing over contraception and the Affordable Care Act, but that was a federal case, covered by the federal law. Asked repeatedly to point to an example where the law is needed at the state level, lawmakers were mum.
Of course, the rhetoric on the other side of the issue is equally absurd.
• We’re going back to white-only lunch counters in Indiana.
• Interracial couples won’t be able to rent property.
• Christian restaurants won’t serve Jews or Muslims or vice versa.
• This bill has caused irreparable economic harm to Indiana.
All of that is patent nonsense.
That economic harm one is especially puzzling to me. Several companies have come out with statements saying they will cancel events or will no longer do business in Indiana because of RFRA.
OK, cool.
There’s a federal RFRA law. Twenty states have RFRA. Eleven states have constitutional RFRA-like protections. There are RFRA – or reasonable facsimiles thereof – pending in at least nine other states. I’m not a math guy, but that’s somewhere around 40 states. Where, precisely, are all these people planning on doing business?
I agree passage of the law created an atmosphere of exclusion and uneasiness, as if social conservatives are forcing their will on the entire population. I get that.
But let’s be honest people.
If there is no real need for a law in the first place, passing it isn’t going to change a thing.
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I have never seen this level of rancor and blatant misrepresentation over a piece of legislation – especially a law as inconsequential as this one.
The Indiana House and Senate passed the law. All Republicans voted yea. Gov. Mike Pence signed it Thursday.
I know what got this thing rolling. Folks are concerned gay marriage will be legal – which it almost certainly will be when the U.S. Supreme Court rules in June.
Certain vendors – bakers, wedding photographers, et. al. – were concerned that they might have to provide services to gay couples. They say that doesn’t line up with their religious beliefs.
This law is supposed to protect them from being sued. But if I had to bet, I’d say this law doesn’t really do that and is mostly a waste of time and effort.
The bill passed by the Indiana legislature is basically a boilerplate of the federal Religious Freedom Restoration Act of 1993.
I looked into that law and its application.
Interestingly, the 1993 RFRA grew out of an employment law case. A couple of Native Americans in Oregon got fired from their jobs at a rehab clinic because they tested positive for mescaline. They got the mescaline in their blood from peyote. They used the peyote in a religious ceremony, which has been a common practice of Native American tribes for centuries.
After they were fired they applied for unemployment benefits but were denied. They sued, claiming they were unjustly fired because of their religion. In the end, they lost and didn’t get unemployment benefits.
This case caused an uproar and was a catalyst for the 1993 RFRA.
Even more interestingly, the original RFRA was introduced by Chuck Schumer, a Democrat from New York. It was co-sponsored by Teddy Kennedy and Nancy Pelosi (both Democrats) and was signed into law by President Bill Clinton, also a Democrat. The RFRA was passed by a unanimous vote in the U.S. House of Representatives. In the U.S. Senate, there were only three dissenting votes.
What?
Finding that level of consensus in Congress is like finding a mermaid riding a unicorn.
Groups on both sides of the political spectrum – the American Civil Liberties Union, the Traditional Values Coalition, the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals – all supported the law.
RFRA was amended in 2003 to include only the federal government, so since then 20 states – most recently Indiana – have passed their own RFRAs.
I made the mistake of reading the law. It is mindnumbingly arcane, but here’s a portion I believe to be crucial:
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; (2) is the least restrictive means of furthering that compelling governmental interest.
Again, no legal scholar here, but it seems to me that the government still can burden your exercise of religion if it can show a “compelling governmental interest” to do so.
Over the years, the results of federal RFRA cases have not been stunningly successful. Largely, I think, because the law has that “compelling governmental interest” part in there.
Some examples:
A devout Quaker woman – an anti-war pacifist – sued the government arguing her religious beliefs precluded her paying federal income taxes because some of those taxes fund the military. The courts rejected that notion: “...while petitioner's religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest.”
Ah, yes, the compelling governmental interest.
In another federal case taxpayers sued in objection to the use of Social Security numbers. They argued those numbers were akin to the "mark of the beast" in the Bible. No good. Courts ruled there’s a compelling governmental interest in having a Social Security number.
In a state case in New Mexico – a RFRA state – a wedding photographer got sued for refusing service to a gay couple. She lost. She appealed and lost again. Seems prohibiting discrimination is a compelling governmental interest.
So what does this mean for Indiana? Will this new law allow people to freely deny services to gay people, immune from the threat of litigation?
I guess we’ll find out after somebody gets sued. Then the courts will decide if there is a compelling governmental interest in prohibiting discrimination based on sexual orientation in Indiana.
Doesn’t seem to me it’s a slam dunk for anybody wishing to deny services. Frankly, if I was a cake baker or a photographer, I wouldn’t risk it.
Beyond the issue of gay marriage, this notion that religious freedom is somehow under attack in Indiana is way overbaked. Pence and other lawmakers like to point to Notre Dame suing over contraception and the Affordable Care Act, but that was a federal case, covered by the federal law. Asked repeatedly to point to an example where the law is needed at the state level, lawmakers were mum.
Of course, the rhetoric on the other side of the issue is equally absurd.
• We’re going back to white-only lunch counters in Indiana.
• Interracial couples won’t be able to rent property.
• Christian restaurants won’t serve Jews or Muslims or vice versa.
• This bill has caused irreparable economic harm to Indiana.
All of that is patent nonsense.
That economic harm one is especially puzzling to me. Several companies have come out with statements saying they will cancel events or will no longer do business in Indiana because of RFRA.
OK, cool.
There’s a federal RFRA law. Twenty states have RFRA. Eleven states have constitutional RFRA-like protections. There are RFRA – or reasonable facsimiles thereof – pending in at least nine other states. I’m not a math guy, but that’s somewhere around 40 states. Where, precisely, are all these people planning on doing business?
I agree passage of the law created an atmosphere of exclusion and uneasiness, as if social conservatives are forcing their will on the entire population. I get that.
But let’s be honest people.
If there is no real need for a law in the first place, passing it isn’t going to change a thing.
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