Professor Marci A. Hamilton, The Top Ten Recent Extreme, Extreme Religious Liberty Proposals, Hamilton and Griffin on Rights

Over 2014 and into 2015, the United States has been awash with a tidal wave of demands for extreme religious liberty, each becoming more outlandish than the last. Never has the Supreme Court’s wise and reasonable First Amendment free exercise doctrine in Employment Div. v. Smith looked so good. While the movement was already in place by the time the Supreme Court interpreted the federal Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby in Junethe decision–without question–opened the floodgates for extreme religious liberty demands of every stripe.

The increasingly creative, if that’s the word to use, extreme tactics are appearing primarily in the states, although a Republican majority in both Houses of Congress might well change that. The typical vehicle in each state is a state version of the federal RFRA, but the original model is becoming a relic of history as states compete to add ever more extreme provisions to an already extreme statutory regime.   (I discuss at length in God vs. the Gavel: The Perils of Extreme Religious Liberty how extreme an ordinary Religious Freedom Restoration Act is, and so will not belabor that point here.)   The extremist approach, however, does not always require a RFRA, because a state can choose to enact extreme protections for some believers on a single issue, too. This list is dedicated to shining light on the notable extremely extreme proposals of 2014-15.

The roar of theocracy is nearing a crescendo in the United States, and here is the evidence:

  1. A “Conscience Clause” for Ordinary Government Clerks. North and South Carolina legislators are experimenting with the idea of giving government workers who issue marriage licenses the right to “recuse” themselves.
  2. Closing the Courthouses to All Weddings to Protect the Religious Sensitivities of Those Who Would Have to Perform Civil Same-sex Weddings. Numerous Florida counties have banned courthouse weddings so as to avoid having to perform same-sex weddings, because clerks’ faith disapprove of such marriages.   They still have to issue a wedding license under a federal court ruling, though. Watch for the next state to combine (1) and (2)….
  3. Making RFRA a Minesweeper of All Other Laws. The recently introduced Georgia RFRA has a treasure trove of extreme proposals, but the most extreme in my view is the provision that states that any state law that is inconsistent with the RFRA is “repealed.”   It is one thing for a later-enacted law to affect a previous law, or for a later-enacted law to specifically state that it repeals a prior policy. It is quite another for a generic, no-content law like a RFRA to have the potential to repeal any law in the state.
  4. Making It Clear that a RFRA Can Be a Defense for the Vast Majority of Crimes Against Children (and Anyone Else). The proposed Georgia RFRA also includes the following language: The law does not “apply in any criminal case involving a sexual offense committed against a minor.” Although it is good to see that its sponsor, Sen. Teasley, is disinclined to let a believer-pedophile raise RFRA as a defense in the criminal trial, if it were enacted, this language is fraught with implicit negatives the courts will be forced to tease out. For example, by inference this language could mean that parents who watched their child die the horrific death of untreated diabetes because they believe in healing by faith alone could raise RFRA as a defense in their criminal trial, or, shifting away from the welfare of children, how about a criminal proceeding involving the sexual (or violent) assault of a woman committed by a religious man? My question is this: Why would anyone want to make a RFRA available in any criminal proceeding?
  5. Introducing Jim Crow Laws for the LGBTQ Community. The energy being spent on ensuring that some believers don’t have to do business with LGBTQ couples or individuals is astounding. “Inspired” by the Hobby Lobby decision, IndianaSenator Schneider wants to make sure Indiana businesses can refuse to do business with same-sex couples. Barbara Harrington shares his concern for bakers and the many others in Indiana who apparently can tell if someone is LGBTQ by looking at them. In the rest of the country, LGBTQ folks do not normally wear a button or blinking light indicating their sexual orientation to strangers, but Indiana may be different. Of course, Indiana does not stand alone here, and Mississippi actually passed such a law in 2014.
  6. Re-Introducing Jim Crow Laws for Minorities, Women, the Disabled, as well as Introducing them for the LGBTQ Community.  While this example is not as recent as the rest, it cannot go unmentioned: the Arizona RFRA that was mercifully vetoed by Gov. Jan Brewer would not only have made it possible for businesses to refuse to do business with the LGBTQ community, but minorities, women, the disabled, and anyone else the restaurant or business owner disapproves on religious grounds.
  7. Making a RFRA Even More Extreme and then Locking It into the State   Constitution. Texas already has a statutory RFRA, which is essentially like the federal RFRA. On a theory that is not enough, some Texas legislators are favoring a new iteration: instead of having the believer prove that the law imposes a “substantial burden” on religious conduct, the believer need only show a mere “burden” and, after that means that virtually RFRA cases go forward, the bill would transform the TRFRA statute into a constitutional amendment.
  8. Requiring School-sponsored Student Prayer at School Events. The Virginia legislature enacted a truly remarkable act, which the bill summary described as follows: “The bill also requires each school division to adopt a policy to permit a student speaker to express a religious viewpoint at any school event at which a student is permitted to publicly speak.” The First Amendment already has ensured that religious students obtain equal time and opportunity to have clubs along with other clubs, and to have some space in the school to pray, but this proposal was different. In essence, it seemed to intend to add religious speech to every school event, whether germane or not.  It had the potential to violate the Supreme Court’s First Amendment decision in Lee v. Weisman, which would have led to inevitable litigation. This latter element, however, is not surprising as the contemporary pro-religion movement in the United States long ago abandoned the concept of deferring to the Supreme Court’s interpretation of the First Amendment. It was wisely vetoed by the Governor.
  9. Licensing Children to Express Hateful Statements to Other Students So Long as They Are Based on Religious Beliefs. Tennessee passed an odious law this year that gave students license to say “impermissible” things to other students so long as they were “based on a religious viewpoint.” One need not be Sherlock Holmes to understand this was a license for students to harass and insult LGBTQ students, so long as the speaker’s views were derived from religion.
  10. Permitting Faith-healing Parents to Avoid Obtaining Insurance Coverage for Their Children. The Christian Science Church energetically lobbied for the Equitable Access to Care and Health (EACH) Act in 2014, but did not succeed. The bill was intended to exempt those with “sincerely held religious beliefs” against health care from having to obtain health insurance under the Affordable Care Act. As Children’s Health Care Is a Legal Duty points out, the problem is that even Christian Scientists use medical care on a relatively regular basis, and others, like the Jehovah’s Witnesses, who object solely to blood transfusions, could under the language of the law avoid obtaining healthcare coverage altogether. Obviously, if the point of the ACA is to spread the cost of medical care more widely and evenly, EACH would create a safe harbor for believers while putting the cost of the medical care they do use on the rest of us. Most importantly, in my view, such an exemption would open the door for parents to not have insurance to cover their children when they become ill, which would add to the incentives not to obtain life-saving or disability-preventing treatment. EACH did not pass in 2014, but is expected to be re-introduced in 2015.