How RFRA Became Controversial: Disputes About Birth Control and Gay Marriage Undermine Bipartisan Support for Religious Freedom

Jacob Sullum
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Posted: Apr 01, 2015 12:01 AM
How RFRA Became Controversial: Disputes About Birth Control and Gay Marriage Undermine Bipartisan Support for Religious Freedom

When President Bill Clinton signed the Religious Freedom Restoration Act in 1993, the law had broad support in both major political parties and was widely perceived as an expression of a pluralistic society's tolerance. When Gov. Mike Pence signed Indiana's Religious Freedom Restoration Act last week, the law became a bitterly partisan issue, denounced by Democrats across the country as an instrument of bigotry.

This dramatic shift in attitudes has less to do with the substance of the statute, which is similar to the federal version that has been around for more than two decades, than with the perceived motives of the law's supporters. Progressives who used to defend religious freedom have turned against it because they see it as a cover for conservative causes.

Indiana's RFRA, like the federal version, says the government "may not substantially burden a person's exercise of religion" unless it can show that the imposition is "the least restrictive means" of serving "a compelling governmental interest." That is the test the Supreme Court applied under the First Amendment until 1990, when it changed course and ruled that neutral, generally applicable laws are constitutional even if they make it difficult or impossible for someone to practice his religion.

The 1990 case involved two Oregon members of the Native American Church who were fired from their jobs as drug counselors and denied unemployment benefits because they consumed peyote cactus buttons, which contain the psychedelic mescaline. At the time, the church's ceremonial use of peyote was exempted from the federal ban on peyote, but not Oregon's.

The idea that the government can prohibit an essential religious practice without violating the First Amendment provoked dismay across the political spectrum. That reaction was reflected in nearly unanimous congressional support for RFRA, which was approved by a voice vote in the House and passed the Senate with just three dissenters.

After the Supreme Court ruled in 1997 that RFRA cannot constitutionally be applied to state or local governments, state legislatures began passing their own versions of the law. Twenty states, including Indiana, now have them; in 11 more, state constitutions have been interpreted to impose similar restrictions.

For years, the American Civil Liberties Union and other left-leaning organizations supported these laws, which have been used to protect minority religious practices involving animal sacrifices, eagle feathers, long hair, symbolic daggers and the psychedelic tea ayahuasca, among other things. But last year, when the Supreme Court said the federal RFRA requires exceptions to Obamacare's contraceptive mandate, the ACLU declared that free birth control takes precedence over religious freedom.

Similarly, social conservatives who supported Indiana's RFRA portrayed it as a shield for bakers, florists, photographers and other business owners who face discrimination complaints because they decline to participate in gay weddings. Indiana's RFRA explicitly applies to judicial or administrative proceedings in which the government is not a party, which would include discrimination complaints.

Despite the national uproar provoked by the terrifying prospect that the law would help people who balk at baking gay wedding cakes or photographing gay weddings, that possibility remains speculative. University of Virginia law professor Douglas Laycock, an expert on religious liberty who supports gay marriage but is sympathetic to the claims of conscientious objectors who do not want to facilitate it, notes that "nobody has ever won a religious exemption from a discrimination law under an RFRA standard."

RFRA's impact on such cases would be relevant only in Indianapolis, Bloomington and South Bend, which prohibit discrimination based on sexual orientation. Indiana law does not, which means the "license to discriminate" that worries RFRA opponents already exists in most of the state.

On Tuesday, while promising an amendment to clarify that the new law "does not give anyone a license to deny services to gay and lesbian couples," Pence lamented that the RFRA controversy has unfairly sullied Hoosiers' reputation for hospitality. Rather more troubling is the damage that such overheated arguments have done to bipartisan respect for religious freedom.

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