I’ve written before about Religious Freedom Restoration Acts. Dut to all the furor regarding Indiana’s new law, and the way Georgian politicians suddenly backed down from theirs, I thought I’d talk about them again, and also clarify just what the furor is about.
In general, as I’ve written before, RFRAs can have a useful function.
The thing is, government officials of all sorts are all too often jerks. They will make up rules, and pass laws, based on all sorts of reasons that aren’t reasonable at all, but are just exercises in their power.
Of course, from my point of view, library rules against bare feet fall into that category, though the way the Ohio Statehouse enacted a ban on bare feet simply because I’d walked in it barefoot, and they way they rammed it through, is another example.
We’ve also seen it, though, in many of the federal RFRA cases that have been litigated. There was the recent case, Holt v. Hobbs, in which the Arkansas penal system totally insisted that a Muslim prisoner could not have a quarter-inch beard for security reasons (even though other prisoners with medical reasons could have one). They claimed to be experts in security, yet other prison systems had no problems with such beards. Arkansas just wanted to be jerks and exercise their authority.
There have also been cases with American Indians, where a native was arrested for possessing an eagle feather. Supposedly the ban on possession is to protect eagles, but the ban goes way beyond killing or hurting eagles to completely ban possession of feathers (except in very special, regulation-bound circumstances).
The general standard for upholding any such laws that really do infringe on freedoms is what is called the “rational basis test”, which only requires that the government be able to come up with, even if only after-the-fact, some sort of reasonable-sounding rationale. The courts show incredible deference to whoever made the rule in the first place, assuming they are experts. It’s a carte blanche to an intrusive government.
We saw that in my library case for going barefoot. All the library had to do to win was make vague scare noises about MRSA and the court accepted that, regardless of how rare it was, or that the library made it up just for the court hearing. That’s how the rational basis test works.
So, in that sort of regard, I like RFRAs because at least some people can use them to push back at least some little bit about over-intrusive government dicks. I hope that some day some barefooter is able to use an RFRA (or the threat of using one) to gain a victory over some governmental edict against bare feet.
It should also be noted that the RFRA is generally a federal statute, and applies only to the federal government (and there is a companion statute that applies to prisons, either federal or state). However, many states have enacted their own, and more are doing so, which led to the Indiana situation.
Anyways, here are my other articles on the RFRA.
- The Religious Freedom Restoration Act — Part 1.
- The Religious Freedom Restoration Act — Part 2.
- State RFRAs.
- I Am Chortling.
- What You Didn’t Know About the Arizona Anti-Gay Bill.
- Is It Cheating?.
So then, how did these anti-governmental-dicks (regardless of their exclusivity) sorts of laws start becoming anti-gay laws?
It started in New Mexico. New Mexico has had its own RFRA since the year 2000. But then a photography business, Elane Photography, refused to photograph a gay commitment ceremony, which ran afoul of the New Mexico’s human rights ordinance, which included protection based on sexual orientation. In the year 2013, the New Mexico Supreme Court ruled that the state’s RFRA did not apply to the situation. Religious rights did not trump public accommodation laws.
It made sense. Here is what the New Mexico RFRA (and almost all RFRAs) says:
A government agency shall not restrict a person’s free exercise of religion unless:
A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and
B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
Also, the method of enforcing the RFRA was as follows:
A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government agency . . .
Note the words “government agency” there. The RFRA restricted what the government could do regarding a government rule. And the remedy was against the government. Elane Photography had no standing to sue. That’s pretty much the way all of the RFRAs were structured.
After that, religious groups (mostly anti-gay right-wing religious groups) worked to remove that restriction.
Arizona was the first (or at least the most famous). After it was passed by their legislature, Governor Jan Brewer vetoed it in February, 2014.
It was very clear that the Arizona bill was aimed at making sure that businesses could discriminate, because Arizona already had an RFRA that didn’t do so!
The Arizona bill (SB 1062) made three major changes to the “standard” RFRA.
First, it made it clear that businesses could also claim a religious examption. This was before the Hobby Lobby case before the Supreme Court was decided. I know this is controverial, but such an extension is not all that unreasonble, at least for closely-held corporations. After all, many of the prior litigants were corporations: chuches. The real question here was whether a for-profit business ought to be able to claim an exemption to a general law.
Second, the Arizona bill tried to change the Arizona RFRA from saying that “Government” could not burden religious exercise to saying that “State Action” could not do so. And it defined “State Action” to include the implementation of a governmental rule, regardless of whether that was done by the “government or nongovernmental persons”. That was how they pulled in business owners who would want to discriminate.
Third, the bill would have created a private cause of action (i.e., a private business could sue on its own) “regardless of whether the government is a party to the proceeding.”
Those are the three key ingredients and strategies for converting the more vanilla provisions of an RFRA to one allowing discrimination by private businesses.
The Ohio bill that was introduced at about that time also had those ingredients. That’s how you can distinguish a discriminatory version of an RFRA from an anti-dick version.
Of course, after the crash and burn of the Arizona and Ohio bills, those trying to “defend” religious liberty had to go into stealth mode.
Thus we got the Indiana law that just passed.
And a lot of downright lying by supposedly religious people.
The Indiana law made sure to define “person” to include “[a] partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity . . .”, and specifies that “person” can be either non-profit or for-profit.
It also provided a private cause of action. The bill says that a “person” who has their religion burdened can use the law “regardless of whether the state or any other governmental entity is a party to the proceeding.” That’s key right there and allows a business to ignore any anti-discrimation law.
The new Indiana law does not use the “state action” language, but instead of saying the “government” cannot burden religion, it says “government entities” may not do so. That can then include a Human Rights division.
What is so pissifying (and which prompted the title of this post) is seeing articles like this one, from the Catholic News Agency: No, Indiana did not just pass a law discriminating against gay people. Here’s why.
This is simply bearing false witness. Either they are deliberately lying, or didn’t bother to look into it close enough (and you really don’t have to look all that closely) to tell the difference. If you are going to “bear witness”, you really should have witnessed enough that you know what you are talking about.
By the way, it’s not just the religious. A lot of people are making pronouncements without bothering to look at the bills or statutes themselves.
Let me add a few extra points.
Does the Indiana law really matter, aside from the kick-in-the-nuts intent? After all, Indiana does not provide anti-discrimination protection for sexual orientation as it is.
Well, yes, it does matter. First, the new law applies to racists or sexists who claim a religious examption, so they could use it to continue their discrimination. There might be some problems with that, since anti-racist discrimination is usually examined using the “compelling interest” standard in the bill. But when it comes to sexism, that generally uses a lesser standard (“intermediate scrutiny”) so a court might allow that under this law.
Another reason it matters is because, while Indiana as a whole does not prohibit discrimination against gays, many municipalities or counties within Indiana do prohibit discrimination based on sexual orientation. In those municipalites or counties, business could then use the new Indiana RFRA to ignore those anti-discrimination ordinances.
One final, somewhat amusing, point. After the Indiana stick, an RFRA bill in Georgia, SB 129 was withdrawn (probably, and mostly). The Slate article on it is Georgia Legislators Admit It: “Religious Liberty” Bill Is About Anti-Gay Discrimination.
In the Georgia case, a moderate tried to introduce an amendment to the bill that would make clear that the RFRA would not apply to anti-discrimination rules. That’s when those in favor said that that would defeat the whole purpose of the bill! That made pretty clear the motivations of those involved.
The (mildly) amusing part of this is that I’ve looked at SB 129. As far as I can tell, it uses the “standard”, pre-Arizona language that is not interpreted to allow discrimination. Somebody told the Georgia legislators that the bill allowed discrimination, but they never checked. (From my experience, this is quite common: legislators rarely know what is really in their bills.)
If Georgia had passed this (and word has it they still may), it would have been an anti-dick RFRA but not an anti-discrimination RFRA.
So, that’s where things stand on the state RFRAs. I hope this guide (if you’ve made through to the end) gives you the tools to look at an RFRA bill yourself and discern its true intent.
But more importantly, I hope it lets you discern when you are being lied to.