Professor Marci A. Hamilton, History of RFRAs (Blog #1)

How did we get here?

This all started with the misbegotten Religious Freedom Restoration Act (RFRA). When it was passed, hardly anyone understood what it would do. It’s couched in constitutional legalese and, let’s face it, the name makes you want to salute. Unfortunately, the law was a bad idea then, but an even worse one once religious groups stretched it beyond anyone’s original understanding. Sadly, it has landed where I feared and predicted it could, with religious groups pressing for outrageous rights to hurt others.

RFRA was a classic power grab. Religious groups, law professors, and some naïve civil rights groups banded together to support overturning the Supreme Court’s actually wise decision in Employment Div. v. Smith. That case involved the “constitutional tragedy” of two drug counselors getting fired for using illegal drugs, and then not being given a constitutional right to get unemployment compensation. Because they used the drug in a religious ceremony, they claimed they had a constitutional right to get the unemployment compensation when they were fired.

The groups responding to Smith were so full of themselves in their fulmination over the Supreme Court purportedly “abandoning” religious liberty that they asked Congress to “restore” a standard the Court had never used. First, they insisted on forcing the government to prove in every single case that a law serves a “compelling interest” before it could apply to a believer. That was out there enough.

But then they came up with the bright idea that the government should also have to prove that the law is the “least restrictive means” for this one believer. For those in need of a legal dictionary, what that means is that every believer can demand that every law be shaped to the believer’s beliefs. In other words, believers obtained an entitlement to be laws unto themselves unknown in American history. That’s right. The “restoration” in the title is a lie.

But in case one feels like trashing the religious groups, remember, they are interest groups like every other interest group. The blame falls squarely on the members of Congress who did not ask the hard questions, did not look beneath the surface of the wild claims being made, and succumbed to the heady opportunity to be our religious saviors. They also deserve to lose a few more approval points in the polls in that they passed it in the House by the egregious “unanimous consent” procedure whereby no one but a few need be present and no roll call vote is taken. RFRA’s proponents, always willing apparently to let the end justify the means, are fond of saying it passed “unanimously.” Tell them to prove it. They can’t, because it didn’t and there is no record of how anyone voted in the House.

The Religious Organizations’ Political Ploy that Let RFRA Sail Through Without Debate or Discourse Over the Policies They Wanted to Overcome

The religious groups’ operation to get the law passed was coldly political, and worked like this: they formed a sizable coalition of respectable religious groups (they excluded any they thought might let on that not all religious groups are wholesome) and a few civil rights groups. Those at the table knew that if they started talking particular policy issues, they would break down into disagreement. Therefore, the agreement was that they would (1) not discuss the policies they each secretly hoped to achieve with a law granting extreme religious liberty rights, and (2) there would be a no-exception policy so that if any group, like the prison administrators, sought an exception from its breathtaking scope, everyone’s answer would be “no.” That way no one would have their issue axed from the bundle. The more I think about their non-disclosure and non-discussion policy, the more I think those religious groups abdicated their right to claim the moral high ground. Only someone whose moral compass is off-kilter would have suggested or agreed to such an amoral policy.

No one during the RFRA hearings remotely supported the notion that for-profit companies would be able to obtain these extreme rights. There were only a few examples offered at all and they involved the Hmong and Orthodox Jews objecting to autopsies that were mandated when a death was suspicious. The rest of the history is a litany of testimony on how wrong the Supreme Court was, and how there was a “better way” by choosing their favorite bits and pieces from other Supreme Court cases, as I argued in this amicus brief in the Hobby Lobby case.

Later, when it was learned that the conservative Christian Legal Society’s skin in the game was that they wanted to be able to avoid government enforcement of the fair housing laws so they could discriminate against unmarried mothers, unmarried couples, and same-sex couples in apartment complexes (someone accidentally sent me a fax they should not have), it appeared that it might well be used by landlords, but no one was thinking that Wal-Mart, or Macy’s, or Toll Brothers would some day be able to avail themselves of RFRA’s privileges by pointing to a believer on the Board or among the owners. They were thinking that an individual believer, who happened to own an apartment building, might try to use it. That is a far cry from a for-profit corporation being able to invoke it by pointing to its owners or board members (which is what is happening in the contraception mandate cases–the Supreme Court will hear argument on March 25 and a critical threshold issue is whether RFRA was intended to cover for-profit corporations).

I know, because I was there. I testified three times on the RFRA formula for extreme religious liberty, and spoke to many members of Congress, civil rights groups, children’s advocacy groups, cities, states, prison officials’ organizations, and attorneys general, and the press about the bill. I told the members they were playing with fire, and quoted Harvard-educated constitutional Framer, Rufus King, who said “[i]f the clergy combine, they will have their influence on government.” RFRA is living proof of that!

The New Wave of Ugly State RFRA Amendments

As if the RFRA formula by itself is not bad enough, a new wave of state RFRA amendments that would permit private businesses to invoke RFRA are a next step much too far. Many of them are being sold as the means of protecting the “religious liberty” of business owners who don’t want to do business with same-sex couples, because they don’t believe in gay marriage (even if it is the law of the state in which they reside), which is ugly enough. Yet, the language in some of these amendments goes even farther, and open the door to discrimination based on race, gender, sexual orientation, religion, disability, and alienage. The groups like the conservative evangelical Alliance Defending Freedom lobbyists aren’t spelling out what surprises their proposed language will spring on the state, but I am willing to explain. Here are the possibilities:

So what about a Muslim restaurant owner who does not want to serve Jews because they disapprove of their faith (or vice versa)? Or the Biblical white supremacist (or ordinary bigot) who does not want blacks in her hat store? How about the evangelical hotel owner who believes that the genders are “complementary” with the man necessarily in control and the female submissive, with her primary duties being home and children, and, therefore, no working mothers will be welcome? How about the believer who views disability as the “mark of the beast” and so won’t let the disabled use their gas station’s restroom? And let’s not forget, how about the Orthodox Jewish or evangelical wedding photographer or baker who doesn’t want same sex couples to get married and, therefore, won’t sell their goods or services to them? Finally, how about the pharmacy owner who refuses to hand over the Pill to the woman with excruciating endometriosis, as he preaches to her to use narcotics instead?

Read Part 2:

Professor Marci A. Hamilton, You Are Not “Complicit” in My Contraception Decision, Because It Is None of Your Business (Post #2)