The Religious Freedom Restoration Act: Valuable but Threatened

The crucial Religious Freedom Restoration Act of 1993, enacted to restore the right to obey the rules of the religion of one’s conviction and now gravely threatened with repeal or partial repeal, was discussed by a panel at the Heritage Foundation on January 16. Panelists clearly showed both how well RFRA has done its job protecting the religious conscience in the 25 years since its enactment, and how threatened the very idea of religious freedom is by part of the nation which has concluded that religious freedom is not a public good but a public harm.

The panel was preceded with a short address by Acting Attorney General Matthew Whitaker, who defended religious freedom by quoting from the foundational Virginia Statute for Religious Freedom, approved in Virginia before the U.S. Constitution. It declared that “truth is great, and has nothing to fear, unless disarmed of her natural weapons, free argument and debate.” He noted that the statute asserted religious freedom not as a gift from the state, but as part of “the natural rights of mankind.” He said that “RFRA affirms that good citizenship is open to every American, whether they’re religious or not.”

Howard Slugh of the Jewish Coalition for Religious Liberty said that “RFRA allows Jews to participate in American life without having to explain in the intricacies of our religious practice.” He said the Employment Division vs. Smith decision, which removed constitutional protection of religious practice from generally applicable law, was therefore problematic for observant Jews, who come from a minority religion. Their practices are “less well known” to the general public than those of a majority religion, and so more likely to be affected by uncomprehending legislators. In line with this, he said that “minority religious groups use RFRA most frequently.” Thus, the general protection it provides for religious freedom is necessary, in addition to specific accommodation in law. Since the U.S. Supreme Court has said that RFRA can only apply to federal law, state or local law banning circumcision or the ritual slaughter of animals would be unprotected. He said that “states that don’t have RFRAs should adopt them without controversy.”

That RFRA has been most successfully used by religious minorities was also emphasized by Asma Uddin, formerly with the Becket Fund for Religious Liberty and the Center for Islam and Religious Freedom. While the Hobby Lobby case mobilized the American Left against RFRA, associating religious freedom with discrimination against minorities, she said empirical analysis of cases since Hobby Lobby has shown that it is religious minorities that benefit the most. She also cited research that shows that most cases brought under RFRA have not concerned the culture war or sexual morality, and that these cases get virtually no attention in the legal literature. It should be added, however, that religious freedom is supposed to be a universal principle, protecting not only minorities, but everyone, including Christians and social conservatives whose morality has fallen from general favor.

A short history of the once near universal RFRA consensus, which included particularly organizations on the left and right ends of the religious and political spectrum, was provided by Gregory Baylor, Senior Counsel of the Alliance Defending Freedom. After passage in 1993, the Supreme Court declared the law unconstitutional in 1997, although it was reinstated by the court as it pertains to federal law in 2006. Baylor said that leaves religious freedom vulnerable to state and local governments “which can sometimes be the most threatening with respect to religious exercise.” While the Religious Land Use and Institutionalized Persons Act (RLIUPA, 2000) successfully restored RFRA protections pertaining to zoning laws, the Left quickly concluded that comprehensive protection for religious freedom would threaten the agenda of homosexual liberation. This hostility then came to culmination in the legal conflict over the Obama Administration’s contraceptive/abortifacient mandate. That administration appears to have “picked a fight” by “crafting an extraordinarily narrow religious exemption.” Many Catholic and Evangelical organizations were then given a choice of violating their conscience or breaking the law. He said that had the Hobby Lobby case not been successful, most of the religious clients claiming RFRA protection “would have dropped their healthcare coverage.”

Emilie Kao of the Heritage Foundation, who moderated the panel, indicated that the Left’s general position is not to “support the freedom of religion of people” who disagree with them. The proposed Do No Harm Act would prohibit the application of RFRA on medical issues. This writer would add that it is in fact a direct attack on religious belief, holding conscientious refusal to perform an act believed sinful or evil to be an imposition on others, when obviously it is the religious believer required to take action who is being imposed on. Increased state regulation and religious diversity may make the defense of religious freedom more difficult, Kao suggested.

Asked how RFRA’s principles can be defended in the coming years, Slugh said the RFRA will survive, “because Americans prefer compromise over coercion.” Against claims that social conservatives are using “RFRA in novel ways to impose third party harms,” he said that RFRA is only being used in ways the Left doesn’t like “because of unprecedented government intrusion.” Requiring nuns to provide abortion inducing drugs was unheard of before the Obama Administration. He also said that the prohibition of “substantial burdens” on religious belief refers to substantial penalties, not to the centrality of a belief to one’s faith, as some RFRA opponents say.

Uddin said that her experience defending religious liberty in other countries has given her a “sobering insight into what a society looks like when the fundamental human right to religious liberty is threatened.” People’s liberty or even lives are threatened for saying “the wrong thing” or holding a different view of the prevailing religion. Making exceptions to religious liberty because a given belief is thought unimportant or offends “liberal sensibilities” moves American society toward state imposed doctrine and away from “the right to be wrong.” There is an increasing willingness “to punish wrong views with government penalties.” While this is now the view of the Left, some on the Right want to cast Islam as “political and not religious, and thus undeserving of religious liberty protection.” But RFRA is not a tool of one side against the other, but provides a “balancing standard” to moderate fears and “create peaceful pluralism.”

Baylor said the coming years will “be a struggle” for religious liberty, more difficult “than even the last 25 years.” Opponents of RFRA say it violates the establishment clause, favoring religious believers (despite the Constitution’s clear protection of religious exercise). All but one circuit court said the HHS mandate did not substantially burden religious exercise, he noted. Legislative efforts such as the Do No Harm Act and the Equality Act (which would exempt SOGI laws from the RFRA standard) also threaten religious freedom. But at least as great a threat as these, Baylor seemed to say, was the “diminished respect” for religious freedom by a substantial part of the public. This will affect the decisions of all three branches of government, he believes.

This writer would observe that while Slugh is correct that the American people prefer compromise to coercion, most people do not believe in compromise where there is a strong moral imperative, which is exactly what the sexual revolution does claim. RFRA indeed provides a “balancing test” for religious claims against state requirements, and thus a way for religious believers to find a place in society where they need not violate their religion. But there should be no place for cruelty, which is what the Left believes traditional sexual morality is on the strength of its own sensibilities. We may expect the battle for religious freedom to be decided by power politics, not commitment to common principle. While traditional religious believers should continue to argue against the obvious wrong of being required to take actions against conscience, we must also commit not to comply with immoral requirements regardless of the penalty.