Are Religious Freedom Laws Really about Discrimination Protection?
Nineteen states have "Religious Freedom Restoration Act" laws on the books and 10 states have contemplated similar legislation in the past two years.
Over the next few days, the Republican-controlled Michigan Senate is expected to vote on a controversial religious freedom law.
Critics have dubbed the Religious Freedom Restoration Act (RFRA) a “license to discriminate.” They say the measure would open the door to discrimination, claiming that it would, for example, permit a medical professional who objects to homosexuality for religious reasons to refuse treatment to a gay patient.
The bill’s proponents argue that such scenarios are “hypothetical scare tactics.” After all, they say, the bill was modeled after an existing federal law that has been on the books for more than 20 years.
Michigan is the latest in a slew of states to propose RFRA legislation. In February, amidst rancorous debate and threats of corporate boycotts, Republican Arizona Gov. Jan Brewer vetoed a similar measure, warning that “the bill is broadly worded and can result in unintended and negative consequences.” (The bill was actually an amendment to a previous RFRA law the state passed.)
Two months later, Mississippi Gov. Phil Bryant, also a Republican, signed a similar bill into law. Kansas and Kentucky passed their own RFRA laws last year. In all, 19 states have RFRA laws on the books. According to the American Civil Liberties Union, 10 states have contemplated similar legislation over the past two years.
“This is definitely something that is starting to get some steam,” said Michigan Rep. Ellen Cogen Lipton, a Democrat. “When a state like Michigan passes something like this, it opens the door in terms of the Midwestern bloc of Great Lakes states.”
In 1993, President Bill Clinton signed the Religious Freedom Restoration Act into law. Introduced by the late Sen. Edward M. Kennedy, a Democrat from Massachusetts, and Rep. Orin B. Hatch, a Republican from Utah, the bill states that the federal government “shall not substantially burden a person’s exercise of religion.” The legislation enjoyed broad bipartisan support as well as the endorsement of the ACLU, which has used RFRA in lawsuits over the years.
At the time, the law was intended to bypass a Supreme Court ruling, Employment Division Oregon v. Smith, which held that the state of Oregon was free to “include religiously inspired peyote use within the reach of its general criminal prohibition for use of that drug, and thus permitted the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.”
Peyote is used in some American Indian religious rites. The ruling meant that religious practices were not protected from government regulation, according to Doug Laycock, a University of Virginia legal scholar who wrote a letter to the Michigan legislature supporting the RFRA bill.
In 1997, the Supreme Court struck down a provision of the federal RFRA, ruling that the law did not apply to states. Originally, RFRA did apply to both federal government and the states, Laycock said. By 2000, nine states had passed their own RFRA laws, largely in response to the Supreme Court ruling.
In recent years, there have been several controversies involving the First Amendment’s guarantee of religious freedom and the proper role of government in protecting that guarantee. In June, in its highly contested Burwell v. Hobby Lobby decision, the Supreme Court ruled that family-owned corporations could not be required under the Affordable Care Act to provide contraceptives to their employees if doing so violated their religious beliefs. (Female employees are still able to get contraceptives through insurance, but not through their employer if their employer objects for religious reasons, Laycock said.)
Proponents of the Michigan law insist that if passed, it is unlikely to clog up the courts with legal challenges.
“People who have no political ax to grind, who really know how these laws work are generally exasperated with the claims that are made against (RFRA),” said Tim Schultz, president of the First Amendment Partnership, who testified in favor of the Michigan law. “This is a law that has the support of a wide variety of faith communities. I think that will end up being decisive and persuasive.”
The Michigan bill was introduced last week by House Speaker Jase Bolger, a Republican from Kalamazoo, during the lame-duck session, and quickly went to a vote, passing 59-50 along strict partisan lines. Originally, the bill was intended to be a companion bill to the expansion of a civil rights law that would add provisions protecting LGBT (lesbian, gay, bisexual and transgender) people. The idea was to make sure that everyone was protected from discrimination, Bolger said.
Civil liberties advocates, including the ACLU, immediately raised concerns about the religious freedom bill. They argue that the law is too open-ended and opens the door to discrimination.
According to Eunice Rho, the ACLU’s advocacy and policy counsel, the ACLU originally supported both federal and state RFRA laws because “we defend religious freedom. We did not contemplate then the use of that law to erode other people’s rights.”
Rho said the Michigan bill opens a potential legal challenge to any legal policy or law on the books. As an example, Rho cited a recent case in Utah, where a fundamentalist offshoot of the Mormon Church was operating a pecan farm.
The Department of Labor investigated the farm for alleged child labor violations and a church member refused to cooperate with the investigation because he said it would violate his religious freedoms. In September, a federal judge held that the church member did not have to comply with the federal subpoena.
Lawmakers who oppose the Michigan bill say that the law would undermine other statutes that protect public health and safety, hurt the reputation of the state, put an undue burden on local governments and force elected judges to make Solomonic decisions about religion.
“We’re making judges religious referees for state policy,” said state Rep. Jeff Irwin, a Democrat. “There are so many different religions and so many different ways that people try to show allegiance to their deity. Some of them directly violate statutes in Michigan that we want to be in effect.”
Nathan Triplett, the mayor of East Lansing, said he opposes the proposed legislation because it would “have all kinds of unintended consequences.” The law would open up the state and municipal governments to numerous legal challenges, he said. “Local officials would have to “devote untold precious taxpayer resources against frivolous claims.”
“Freedom of religion doesn’t give us the right to harm others. Which is what the RFRA would do,” he said.
Bolger, the bill’s sponsor, said such criticisms are “disingenuous at best and misleading at worst.” He said the proposed law protects a wide variety of people, from Jewish or Halal butchers who want to practice their craft according to the dictates of their faith, to Christian pastors who feel it is their calling to feed the homeless.
“These are real world cases,” he said.