Hobby Lobby and its Aftermath: What Will RFRA Do Next? [Hub Debate]

img-State-lawmakers-examine-the-Religious-Freedom-Restoration-ActNow that the Supreme Court of the United States (SCOTUS) has decided Burwell v. Hobby Lobby, people are wondering a few things:

  • What is the Religious Freedom Restoration Act (RFRA)?
  • ŸWhy do we have RFRA?
  • What does RFRA cover?
  • What are the limits of free exercise of religion under RFRA?

These are all great questions because most people have never heard of RFRA, and why should they have? It is an obscure federal law concerning religious freedom. And how many rational people read any of the tens-of-thousands of federal laws when they do not have to? Not many. Heck, even lawyers do not read federal laws unless they absolutely have to, which is not very often.

I would like to take a moment and address these questions. This is not meant to be an exhaustive treatise on RFRA (much smarter people than I have written such books), but a primer.

First: What is RFRA? It is a federal law officially know as the Religious Freedom Restoration Act of 1993, and is found 42 U. S. C. § 2000bb et seq. It passed the Congress with only three dissenting votes — in other words, it passed with a vote total of 532 for and 3 against — , and was signed into law by Bill Clinton. Democrat Charles Schumer of New York sponsored the bill in the Senate. RFRA is a relatively short law (as far as federal laws go). The meat of RFRA is the following:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Exercise of religion is very broadly defined: “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

In sum, RFRA sets up a system in which if a federal government rule substantially burdens a person’s — and person includes corporations, that is made clear by the federal government’s own Dictionary Act — exercise of religion, then that person will be given an exemption to the rule unless the federal government demonstrates the rule is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.

Photograph of President William J. Clinton Signing the Religious Freedom Restoration Act on the South Lawn at the White House, 11/16/1993
Photograph of President William J. Clinton Signing the Religious Freedom Restoration Act on the South Lawn at the White House, 11/16/1993

Second: Why do we have RFRA? In short, we have RFRA because we care about maximizing individual liberty, including religious freedom. In fact, religious freedom is our first freedom; without it all other freedoms fall in short order. We also have RFRA because we care about minority rights. Those who follow majority religions (think Mormons in Utah) do not need special legal protections because legislators, who are usually members of the majority religion, are unlikely to pass laws that disadvantage members of the majority religion. Instead, they are much more likely to pass laws that disadvantage religious minorities. There are many other reasons, but, again, this is a primer.

Third: What does RFRA cover? RFRA covers any free exercise. Yes, any free exercise. This means it is very expansive, and it is meant to be so. We live in the most religious diverse nation in the history of the world. If we were to limit RFRA to the most common expressions of free exercise, we would leave out huge swaths of religious behavior — primarily minority religious behavior.

For example, Texas (which has a state version of the federal RFRA) prohibits giving money to panhandlers. A group of religious people felt it their religious duty to give money to panhandlers when asked (think Jean Valjean in Les Miserables), so they sued for an exemption. They won because (1) banning giving money to panhandlers was not a compelling governmental interest, and (2) a blanket ban on giving was not the least restrictive means of dealing with panhandling. This is a standard RFRA case and RFRA analysis.

Fourth: What are the limits of free exercise of religion under RFRA? This is really the question du jour.  There are many people who wonder what terrible things those darn religious people can get away with now that we have RFRA. They parade a list of hypothetical horribles, including: a return to segregation, the stoning and genital mutilation of women (seriously, I have heard this crap), an end to drug prohibitions, etc. These concerns are sensationalist and usually found on Facebook threads or on partisan websites. This noted, let us examine a few of these hypotheticals anyway.

In certain cultures, usually African, some engage in female genital mutilation (FGM). I am not an expert of African religions, but FGM seems to be a primarily cultural phenomenon. Let us assume, for the sake of argument, however, that FGM is religiously motivated. So, the federal government has a law against FGM. Does this law substantially burden the free exercise of someone who wishes to engage in FGM? Yes, it does (they cannot do it, which is a substantial burden). Next, does the blanket prohibition on FGM further a compelling governmental interest. Yes, it does. Ensuring this sort of mutilation does not happen to women is without much doubt a compelling governmental interest. Next, is a blanket prohibition the least restrictive means in further the government’s compelling interest? Yes, nothing but a blanket prohibition will effectively keep women from suffering the horrible effects of FGM. Under these circumstances, the religious person wishing to engage in FGM would not be given an exemption from the law. (A RFRA analysis of stoning would come out the same way.)

In America, we used to have governmentally enforced racial segregation — i.e., de facto slavery. There is no way to contort RFRA to bring back segregation or bans on interracial marriage. RFRA protects the rights of individuals, not the government. Since segregation and bans on interracial marriage are passed and enforce by governments, RFRA could not be used to defend them. In fact, RFRA would be used by religious individuals to seek exemptions from segregation and bans on interracial marriage.

Some might argue RFRA could be used by religious employers to discriminate against blacks and other minorities in hiring. These people are woefully uniformed. SCOTUS addressed this very argument in the Burwell decision, and unequivocally stated RFRA could not lead to this result.

Drugs are a more difficult question, at least lower-level drugs. Exemptions for peyote use probably would be allowed under RFRA. In fact, there are cases that have already recognized this. Marijuana, maybe. RFRA challenges to cocaine, LSD, and other hard drugs are almost certain to fail.

On a more rational level, religious employers refusing to provide blood transfusions to employers through health insurance is a very interesting RFRA question. Jehovah Witnesses believe blood transfusions are sinful because the Bible prohibits the intake of blood. (Genesis 9:4; Leviticus 17:10; Deuteronomy 12:23; Acts 15:28–29.) Witnesses might not wish to subsidize blood transfusions because they do not wish to be complicit in sinful behavior. Thus, a governmental mandate to provide blood transfusions to employees would substantially burden a Witnesses’s sincerely religious belief against facilitating blood transfusions. So, next we ask whether the blood-transfusion mandate furthers a compelling governmental interest — e.g., to ensure those in emergency situations have ready access to life-saving blood transfer procedures. Let us assume that is a compelling governmental interest. Now, is a mandate the least restrictive means to effectuate the government’s compelling interest? I have serious doubts it is. Emergency blood transfusions are obtainable in any emergency room in America. Those emergency rooms cannot refuse service, even if the person cannot pay. The general need for non-emergency blood transfusions can be afforded by any number of already designed and funded governmental health-care programs, which are already providing such services. In the end, there may well be a less-restrictive mean to effectuate the government’s interest, and an exemption may be granted.

Honestly, there some hard-and-fast answers in RFRA litigation, but many questions need to be litigated and argued before a definitive answer is found. This is no different than any other area of the law, and RFRA should not be attacked because it is like most every other law.

And, please, remember that when people parade horribles about how RFRA will end the United States as we know it, they are just plain wrong.

Liked it? Take a second to support Utah.Politico.Hub on Patreon!

Related posts