The Weekly Standard
March 29, 2015

Douglas Laycock, a professor at the University of Virginia Law School, writes in an email:

The issue with respect to Religious Freedom Restoration Acts (RFRAs) is whether people should be allowed to practice their religion, even when their acts would otherwise be illegal, if they are not doing any real harm. The American tradition of religious liberty has exempted religious practices since the seventeenth century. Quakers in colonial times didn’t have to swear oaths, or serve in the militia.

Sometimes this is entirely uncontroversial. It is illegal to give alcohol to minors, but no one thinks that law should be applied to communion wine, or seder wine at the Jewish Passover.

For a time, the federal Free Exercise Clause (part of the First Amendment) required religious exemptions unless the government had a compelling interest in enforcing its regulation. Then in 1990, the Supreme Court changed that rule, and basically said that the free exercise of religion is protected only against discrimination.

Congress responded with the federal Religious Freedom Restoration Act in 1993, creating a statutory right to practice your religion, free of government regulation except where necessary to serve a compelling government interest. That law passed unanimously in the House, and 97-3 in the Senate; Bill Clinton praised it and signed it.

But in 1997, the Supreme Court said that the federal RFRA could not constitutionally be applied to the states. If states wanted to protect religious practice subject to the compelling interest test, they would have to do it themselves. This is the background to why states began enacting their own RFRAs.

There are now twenty states with RFRAs, and eleven more that have interpreted their state constitution to provide the same level of protection. These 31 states include all the big states except California: Texas, New York, Pennsylvania, Florida, Michigan, Ohio, Illinois. You had probably never heard anything about any of these laws, except for Hobby Lobby, because they haven’t done anything controversial.

There are hardly any cases about discrimination, and nobody has ever won a religious exemption from a discrimination law under a RFRA standard. (Churches are exempt when sued by their ministers, but that is a separate constitutional rule. Some discrimination laws have specific exemptions for churches or religious organizations. That is very different from trying to persuade a court that anti-discrimination laws do not serve compelling government interests.)

So what kinds of cases are RFRAs really about? They are about churches feeding the homeless; sometimes the city or the neighbors object. They are about Muslim women wearing scarfs or veils. They are about Amish buggies. They are about Sabbath observers. They are about church bells. They are about all the unexpected ways in which a great diversity of religious practices come into conflict with a great diversity of laws and regulations. And usually, the government wins. These laws have been under enforced, not over enforced.

And of course there is Hobby Lobby, decided on the explicit premise that the effect on female employees would be “precisely zero.” The government had in place a system for delivering free contraception without making the employer pay for it. Hobby Lobby is one of the very few high profile cases, and one of the minority of wins for religious objectors. But it did not say that religious exemptions under RFRA can require employees to do without.

State RFRAs are quite unlikely to affect discrimination claims. I hope they do affect discrimination claims in certain very narrow contexts: very small businesses providing wedding services or marital counseling services. But I am not optimistic. So far, the religious claimants have lost all of those cases, including the wedding photographer under the New Mexico RFRA, and the florist in Washington under a RFRA-like interpretation of the state constitution.

Discrimination cases in other contexts simply don’t come up. The florist in Washington had served her gay customer for years, knowing that the flowers were for his same-sex partner; she had had gay employees. She didn’t object to any of that; she objected to serving the wedding, because she understands weddings and marriages to be inherently religious. She sees civil marriage as resting on the foundation of religious marriage.

Of course there are real bigots out there, and some of them discriminate against gays and lesbians. They are doing that in states without RFRAs as well as in states with RFRAs. They mostly aren’t asserting religious justifications; they aren’t producing cases. And if they do start to produce cases, all experience is that they’re going to lose.

Part of the problem is conservative legislators and activists promising the base that a state RFRA will protect them against gay-rights laws. That’s just pandering; there is no basis in experience to think that. But the gay-rights side has piled on with the charge that these laws are licenses to discriminate. So both sides are misleading the public. And the academics who have actually studied these laws and know what they do can’t get anyone to pay attention over the din.

One other wrinkle: a state RFRA cannot protect anyone against federal law. If the Supreme Court requires states to recognize same-sex marriage, no state RFRA will create exemptions from that. The issues about exemptions from gay-rights laws arise only when a state with a RFRA also has a sexual-orientation nondiscrimination law. Most of the red states that are enacting RFRAs have no such laws, but some of their cities do. Indianapolis, Bloomington, and South Bend prohibit sexual orientation discrimination. In the rest of Indiana, this whole issue remains hypothetical. And although it’s not illegal to discriminate against gays in Indiana, the Indiana reporters I have talked to are not aware of any widespread practice of it.

State RFRAs have not produced very many cases. But those cases are deeply important to the people affected. I attach a letter that a group of us wrote to the Indiana legislature. It may have more detail than you want. But read through it to the end (or if you prefer, just skip to the end). It has the remarkable story of Mary Stinemetz, who died for her faith for lack of a state RFRA. Fortunately, that doesn’t happen very often. But that’s a real case. None of the incredible denunciations of the Indiana RFRA are based on a real case; they are all talking about things that have never actually happened.

And if you want to know where I’m coming from: I filed a brief in the Supreme Court urging the Court to require same-sex marriage as a matter of constitutional law. And then to protect the religious liberty of dissenters. I believe in “liberty and justice for all,” with an emphasis on “all.” Most of the activists in this fight, on both sides, want liberty and justice only for their side. They want to crush the other side.

Click here to read the article on The Weekly Standard.