RFRA bills, though being long criticized by many atheists and advocates for social justice, have mostly been ignored by mainstream media, after all the federal RFRA was signed by Clinton back in the 90’s and, at the time, it was largely supported by liberals. However, with the recent passage of the RFRA bill in Indiana such bills have come under much wider scrutiny. However, a lot of this scrutiny, even that offered by a lot of atheists, isn’t always based on a terribly accurate view of how RFRA bills actually function. Don’t get me wrong, I think RFRA bills are not terribly good, but it’s not as overreaching as a lot of people seem to think.
The most common idea I have heard people express is that RFRA laws can provide a carte blanch for people get out of laws they don’t like, particularly anti-discrimination laws, by simply claiming they have religious beliefs which conflict with those laws. For instance the church of Satan tried to make such an argument after the Hobby Lobby case, and Wiccans made a similar argument recently, claiming they had the right to have nude rituals on the capital steps and marry horses and other such nonsense.
I’ve also seen a few people argue people should try to throw the RFRA back in fundamentalists faces by claiming they have religious beliefs which prevent them from serving them. This is odd because by and large the RFRA laws have not been a successful means of actually protecting business faced with discrimination charges. For instance New Mexico has had an RFRA law for quite a while, and yet the court still found against the photography company who refused to photograph a gay wedding. It’s almost guaranteed that trying to cite the RFRA as justification for refusing to service merely because they do not like homosexuality would go just as badly for you as it did for the photographer in this case.
So why is there such a huge disconnect between how people expect these laws to operate, and how they actually operate, other than the obviously bad reporting on these issues. Well first of people need to understand that the RFRA doesn’t make all those other laws go away, if you break any law you can still be arrested and/or taken to court for that violation, that includes violations of discrimination laws. So most people aren’t going to violate those laws, one because most people probably don’t even want to, and two because even if they thought they could win a right to discriminate under the RFRA most people, particularly business owners, wouldn’t want the hassle or publicity that such a case would cause. For instance, the cake baker in Colorado, before even losing their case, ending up shutting down their business because the bad publicity cost them too much business. Even if they had won the legal battle they still would have lost in the court of opinion.
Now, on to why RFRA laws are no guarantee one can get around the law. To really understand this we need to look at the actual law. The wording of law is pretty similar between the federal and state RFRA laws so I’ll quote from the Indiana law.
Provides that a state or local government action may not substantially burden a person’s right to the exercise of religion unless it is demonstrated that applying the burden to the person’s exercise of religion is: (1) essential to further a compelling governmental interest; and (2) the least restrictive means of furthering the compelling governmental interest.
Provides that a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a state or local government action may assert the burden as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding.
Basically what this means is that if a person fails to follow the law in some way and they are brought before a court for this they can cite their religious beliefs as a reason they should not be required to follow that law, but this defense is not an automatic victory. There are several reasons which the court may find against you.
Most obviously if they can show that the law is the “least restrictive means” to achieve the laws goal. This was the point which won Hobby Lobby an exemption, in that the government’s interest in providing better access to contraception for low income households could be easily met in other ways, and in fact that is what the government did by extending the exemption they had already granted to churches to closely held corporations like Hobby Lobby.
On the other hand this argument is not likely to work very well when it comes to anti-discrimination legislation since it would be difficult to imagine a less restrictive way of protecting interstate commerce. This means that no matter what evangelical Christians may think about these laws they aren’t likely to provide them with a means of discriminating against homosexuals without legal repercussions, at least no more than they already have.
It’s also important to note that courts are also going to consider whether or not your religious practice claim is even legitimate. In other words you just just make up your own religion it’s unlikely they will take your claim seriously. The Court will consider whether or not there is some religious tradition upon which your claim is based, so claims about marrying horses, for instance, are likely to be dismissed before the previous concern is even brought up.
Of course this doesn’t mean I think RFRA laws are a good thing. I still think it’s objectionable, under the 1st and 14th amendment, to grant religious people access to a legal argument that non-religious people like myself don’t have access too, even if that argument will probably fail a lot of the time. Still RFRA laws aren’t the huge threat to civil liberty and anti-discrimination laws that they are sometimes painted as.