July 4, 2014
The extreme nature of the Hobby Lobby decision has led to calls for RFRA’s repeal and amendment. Even RFRA’s supporters anticipated such calls, as some religious leaders (though by no means all) presented a letter to members of Congress the very day of the opinion begging the members not to repeal or amend RFRA.
RFRA supporters are saying what’s wrong with the Democrats on RFRA; after all, they voted for it in 1993? On a similar, though more cunning note, House Speaker John Boehner thanked President Clinton publicly for RFRA after the decision, apparently as a lame political attempt to rope him into the Court’s result in Hobby Lobby.
The answer is that the RFRA of 1993 and 2000 were passed under false pretenses. It was never a “restoration” of former law and the lobbyists for RFRA between 1990 and 1993 kept their real, ugly agendas close to the chest. Congress and the President had the wool pulled over their eyes. Shame on them for not doing their homework, but it is the height of hypocrisy for RFRA supporters to now pretend that anyone on the left understood what they were up to.
The Barriers to Full and Frank Discussion About what RFRA Portended in 1993
Breathtaking scope. First, the scope of RFRA was mind-boggling. RFRA, by its terms, potentially disabled every law in the country the government could enforce, presumably including many that the members had fought to enact. Yet, the members stayed within the religious advocate’s bubble, where all that matters is making sure the believer is free, and which shoves discussion of the harm that might accrue to other believers to the fringes of the debate. As elected representatives, their job is to think outside the box of every legislative proposal, but it does not appear that it ever occurred to them that there was anything beyond the RFRA black box.
Pollyanna attitudes toward religion. Second, in 1993, the United States, including members of Congress, still entertained a Pollyanna attitude toward religion that led them to believe it can do no wrong. It was taboo to criticize religious groups publicly until I published God vs. the Gavel: Religion and the Rule of Law in 2005 for the purpose of enriching and broadening a factual debate about religious groups that break the law. But in 1993, which was pre-9/11 and pre-Catholic sex abuse scandal, the Pollyanna attitude held full sway, leading members and the President not to ask hard questions, and the Coalition for the Free Exercise of Religion to pretend there were no troubling agendas among the dozens of its members except for a need for a right to avoid autopsies by Orthodox Jews and Hmong. The truth is that the Christian Legal Society was in the game in order to overcome the fair housing laws so that believers could refuse to rent apartments to unmarried couples; and the Catholic bishops at first resisted RFRA for fear that it would empower believers to assert a right to abortion and, therefore, undermine their campaign against it.
Constitutional mumbo jumbo statutory terms. A third barrier to a full and frank public discussion lay in the bill’s statutory modus operandi: it was constitutional mumbo jumbo. Moreover, the bill’s breadth was so enormous that it drove analysis away from specific examples. If one is thinking of every law in the land, it is tough to come down to particular issues. (That is particularly true when the people who know keep mum.)
With its opaque constitutional standard, there was no natural starting point to criticize it, so almost all of the analysis (with the exception of concerns about prison security at the end of the bill’s trajectory) resided at a lofty and abstract level. None of this is to excuse the members or the President for failing to ask the hard questions, but it is an explanation. And the members were not the only ones who didn’t penetrate the surface of RFRA to its inherent problems – neither did plenty of its supporters at the time.
The Politics and Propaganda of RFRA’s Supporters
The variety of religious faiths in the United States is boundless, and only some of them were invited to join the Coalition for the Free Exercise of Religion, which lobbied for RFRA. The groups whose practices would have sent up red flags – like Satanists who practice human sacrifice, the Children of God, who believe in sex with young children, the jihadists, and the fundamentalist Mormon polygamists–were intentionally invisible.
The President and members of Congress had to have known that religious groups with dangerous practices exist. For goodness sake, the Southern Poverty Law Center, with its extraordinary public service in tracking hate groups, with a focus on the religious ones, has been in place since 1971.
In addition to the few extremists listed above, what about the Ku Klux Klan, or the other white supremacist or Nazi groups, who trace their racist beliefs back to the Bible or neo-paganism? What about the religious militia in Montana and Idaho? Or the faith-healing believers whose children happen to die when they do not take them to the doctor? The first RFRA was before September 11, so the members get a quasi-pass on thinking about terrorists, although the first bombing of the World Trade Center was nine months before RFRA was signed into law on November 16, 1993.
In the President’s and the members’ small defense, there were dozens of religious organizations behind RFRA as well as most of the major civil rights organizations, including the ACLU and People for the American Way. Even Americans United for Separation of Church and State loved it! A number of members asserted that the unity of religious and civil rights groups reassured them that the law had to be a good idea. Looking back on it, this was just an excuse to fail to dig into the issues and try to understand why religious believers needed to overcome virtually every law in the land.
The President also had Elena Kagan inside his Administration, who was responsible for RFRA, and cheerleading for it, as I discuss here. The ACLU also bears serious responsibility for what RFRA has wrought, for its failure to fight RFRA’s re-enactment in 2000 after it was held unconstitutional in 1997 in Boerne v. Flores. Both now-Justice Kagan and the ACLU opposed the Hobby Lobby result, in part because it appears they assumed that RFRA would not trump the civil rights laws. Haha.
Now, why would they think that? The short answer is that whenever anyone raised a concern about RFRA, including myself, between 1997 and 2000, RFRA’s proponents would blithely assert that the civil rights laws, like those trumped by Hobby Lobby against its female employees, serve a “compelling interest,” and therefore it’s all good. (Just like they tried to get Arizona’s crazy RFRA passed by invoking the “compelling interest” test while ignoring the much more difficult “least restrictive means” test.) That was a big fat lie of omission, because of their failure to acknowledge the “least restrictive means” test and that test is, frankly, the main reason that Hobby Lobby won. It is a test nearly impossible to meet, and one that RFRA’s supporters have tried to pretend does not have the teeth it does since RFRA was first passed.
Of course, that is just pure propaganda, because they knew full well in 1993 when RFRA was passed as a purported “restoration” of religious liberty, that its least restrictive means test had just been rejected soundly five months earlier in Church of Lukumi Babalu Aye v. City of Hialeah. That’s right, the Supreme Court rejected the RFRA test the same year and mere months before RFRA was passed, but the religious lobbyists adopted then and still effect a pretend stance that RFRA is a pure reflection of the First Amendment for decades.
Thus, a primary reason that President and Congress and the American public have been deceived about the reality of RFRA is the religious groups’ propaganda.
The good news is that the genie is now out of the bottle; the Supreme Court for the umpteenth time with the Hobby Lobby decision made clear that the super-strict scrutiny embodied in RFRA is nowhere near its First Amendment doctrine.
RFRA’s proponents should be ashamed of themselves if they say one more time that RFRA reflects prior doctrine. It is an extreme statute, and Godspeed to the members of Congress and the political candidates who take up the cause of the vulnerable, including women, children, minorities, and homosexuals and our civil rights laws generally, and repeal a statute that never would have passed had there been the kind of debate Americans deserve.