Marci Hamilton, The Same-Sex Marriage Cases at the Supreme Court, RFRA, and the Coalition Behind the RFRAs: Then and Now, Hamilton and Griffin On Rights

The Supreme Court this week hears oral arguments in Obergefell v. Hodges and related cases on the questions whether states must recognize same-sex marriage. Professor Leslie Griffin has teed up the two central issues very nicely here.

In this blogpost, I will discuss the splintering of the coalition behind the federal Religious Freedom Restoration Acts (“RFRA”), where individual coalition members are in the debate over same-sex marriage at the Court, and why the dissolution of the coalition is an improvement for American politics and democracy.

What Was Wrong with the Coalition Behind the Religious Freedom Restoration Acts

The federal Religious Freedom Restoration Act was pushed by the Coalition for the Free Exercise of Religion, a remarkable coalition of liberal and conservative civil liberties and religious groups. The group started with religious groups across a mainstream spectrum and the American Civil Liberties Union (ACLU), the American Humanist Association, People for the American Way, and Americans United for Separation of Church and State. As I discuss at length in God vs. the Gavel: The Perils of Extreme Religious Liberty and in a recent article here, the RFRA movement started on a misleading and false premise: that this new law was restoring “true religious liberty.” It was not, but in the early 1990s when the RFRA movement started many believed that it was just about protecting treasured First Amendment freedoms. They did not understand it is an extreme standard never before followed by the United States Supreme Court.

To push RFRA through Congress and then the states, it was imperative to keep the discourse at the level of the general. In short, rah rah religious liberty! And don’t ask any other questions, e.g., what does your group hope to accomplish through a RFRA? The RFRAs were in fact a demand for blind accommodation of religious conduct. Federal and state legislators then and now grease the way to this dark universe when they enthusiastically embrace “religious liberty” as though it is their mother and apple pie, without asking, “So why do you need more than the First Amendment provides?”

The abstract quality of the debate is evident in the early legislative record, which was replete with criticisms of the Supreme Court for supposedly “abandoning” real religious liberty but very short on specifics. (That lack of specificity contributed to the Court holding RFRA unconstitutional in Boerne v. Flores.)

This broad coalition actually needed to keep discussions on a lofty and policy-free plane to stay cohesive. Think about it: how were these diverse groups that often push against each other in the legislative process going to stay together unless they agreed not to raise the issues that divided them? Political reality required submersion of particular agenda items to keep the coalition together. For example, the ACLU, the American Jewish Committee, and evangelical Christian organizations were not going to link arms on social issues, but they could sing in unison for a “restoration” of religious liberty. Plus, the Senate co-sponsors, Ted Kennedy and Orrin Hatch, spanned the political spectrum. The “restoration” lyrics sung by a politically unified choir meant that neither the members nor the press nor academics were asking the hard questions about RFRA in the early 1990s. The assumption was that if liberal and conservatives equally liked the law, it had to be good.

Of course, the lesson is that the unity was more a function of a failure to examine than the discovery of a shared utopian oasis. Whether this was reached formally or informally I do not know, but I learned on the RFRA battleground over the years that there was an agreement among Coalition members not to sanction any carve-outs from the RFRA model. The lobbying pact was that everyone sought “religious liberty” regardless of potential, specific applications.

The deal of non-specificity was actually a deal with the devil for the liberal groups who did not apprehend in the early 1990s that the RFRA standard was not a return to past doctrine but rather an extreme game changer. No one was thinking that Hobby Lobby would be able to invoke RFRA against the federal government to craft an employee benefit plan based on gender and religion, or that the RFRA formula could give cover to merchants who wanted to refuse services to gay or same-sex couple customers.

The no-details deal has been at play in the states as well. RFRAs are still pushed as “restoring freedom” or “restoring religious liberty.” The guts of a RFRA are such legal mumbo jumbo that that is where legislators and the public typically stick; they are led to believe it’s all about that great and familiar good, “religious liberty,” when in fact, it’s a new world. The recent Indiana RFRA ruckus finally took the country beyond the surface as the talk about generic religious liberty gave way to specifics and concrete debates. That only happened because there were political players on both sides and not an amorphous coalition, silent on specifics.

The Coalition started to fray after Boerne v. Flores, when Congress was asked to re-enact another RFRA after it had been declared unconstitutional. By then, the ACLU, People for the American Way, and Americans United, among others, saw that it could be a threat to civil rights. The next RFRA was nearly shelved when the anti-civil rights agendas became more apparent, and the ACLU among others peeled off. Unfortunately, by a “vote” under “unanimous consent” rules (as in no recorded vote and no one there) after most members of Congress had left for the summer break in 2000, a new RFRA for federal law and RLUIPA were enacted.

While there were differences between the civil rights groups and the right-leaning religious groups by 2000, there was still enough leftover camaraderie that they found some things on which to agree. It was the ACLU, for example, that drafted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which enacted a companion law to the new RFRA and which imposes the federal RFRA standard against local and state land use and prison laws.

How the Deal that Religious and Civil Liberties Groups Struck Behind RFRA Has Fallen Apart and We Are All Better Off

After that, it became increasingly difficult for progressive and conservative groups to lobby in unison for such laws, and the RFRAs became primarily a darling of the conservative right Christians. They tried to continue the discourse of generic religious liberty, but those in the RFRA crosshairs–like the victims of clergy sex abuse, the advocates for child protection from medical neglect, the female employees who now have to worry about full medical coverage from their for-profit bosses after Burwell v. Hobby Lobby, and the LGBTQ community turned to policy specifics and the battles that matter most to them. Policy specifics are the enemy of the RFRA strategy.

The ACLU, Americans United, and People for the American Way have now become public and effective critics of the RFRA potential for harm. No longer are they implicitly empowering those who would hobble their policy achievements through vague gestures toward “real” religious liberty.

Former enthusiastic members of the Coalition for the Free Exercise of Religion are now engaged in the war over same-sex marriage very publicly and on both sides at the Supreme Court. The ACLU represents Petitioners in Obergefell. The American Humanist Association, the Anti-Defamation League, Christian Legal Society, the General Conference of Seventh-day Adventists, and the Traditional Values Coalition each have filed very distinctive briefs. This is what American politics should look like—peaceful coexistence and hard-fought battles among all believers (and non-believers) who speak publicly and explicitly.

The Coalition for the Free Exercise of Religion behind the RFRAs was an organization in political history that we should never forget. Or repeat.

The Same-Sex Marriage Cases at the Supreme Court, RFRA, and the Coalition Behind the RFRAs_ Then and Now _ Hamilton and Griffin on Rights