Religious Freedom Restoration Act (RFRA) Statutes

One of the hot news items this week has been Indiana Governor Steve Pence's signature into law of a Religious Freedom Restoration Act (RFRA) statute for the Hoosier State.  Asa Hutchinson, Pence's fellow Republican governor of Arkansas, has vowed to sign a similar law passed in Arkansas this week.

This allows me to revisit earlier posts about these laws and their impact.

As you may recall, back in 2014 Arizona Governor Jan Brewer (R) vetoed a bill passed by the Republican-controlled Arizona legislature.  Dubbed a "religious freedom" statute, the law would have exempted both individuals and companies from legal penalties if they violated the civil rights of customers, patients, etc. because of the perpetrator's sincerely held religious beliefs.  The backlash from major employers, citizens, and potential tourist events to Arizona led to various initial supporters and even the state's two Republican US Senators to oppose the bill.

Similar bills are not new.  A study by Wayne State law professor Christopher Lund identifies 16 states that added such laws between 1993 and 2009:

Interestingly, it appears Arizona has a law very similar to the one Gov. Brewer vetoed already on the books. Lund's article finds very few cases have arisen involving these laws.  Most lawsuits stemming from these laws also do not appear to have successfully exempted the defendant from legal consequences.

Connecticut passed the first of these RFRA statutes back in 1993 in reaction a Federal court case that had nothing to do with LGBT Americans.  The recent rise of conservatives filing these bills around religious freedoms, however, comes largely as a backlash to the rapid expansion of same-sex marriage legalization.  Here is a brief primer on the issue:

First, dear readers, you must understand that existing civil rights on the national Federal level cover very specific classes of people (race, religion, ethnicity, disability, etc.)  Age is covered but only for people 40 and above.  In turn, not all classes of people are covered equally in the areas of employment, housing, and public accommodations.  For instance, sex discrimination is illegal in employment and housing.  Sex discrimination is also illegal in terms of some public accommodations (hotels, etc.) but generally not restaurants and many other venues.  So, you can offer special Ladies Night deals not offered equally to men, have gay male leather bars that exclude women, women-only music festivals, and women-only gyms.  Similarly, discrimination because of one's familial status is illegal in housing but not employment or public accommodations.

And when it comes to sexual orientation, there simply is no existing Federal law banning discrimination based on a person's homosexual, bisexual, or heterosexual orientation.  For years supporters have been trying to pass the Employment Non-Discrimination Act (ENDA) or similar bills to ban such discrimination nationally.

22 states and DC, however, have state laws banning sexual orientation discrimination.  Utah just passed such a law covering employment and housing but excluding public accommodations.  11 other states ban sexual orientation discrimination involving public (state) employees.  Additionally, scores of cities, universities, and businesses have ordinances and policies banning sexual orientation bias.

So, now we have a number of states legalizing same-sex marriages.  In fact, all of the states where same-sex marriages were initially performed had civil rights statutes banning sexual orientation.  In New Mexico, a gay couple planned their wedding and contacted a public photography business to photograph their ceremony.  The business' owner, a devout conservative Christian, refused claiming performing this service for this couple would violate his religious beliefs.  The couple filed a civil rights complaint against the business and ultimately won.  Conservatives howled this application of existing civil rights laws against this business violated the owner's personal religion.

In Oregon, there was a similar case involving a lesbian couple planning a ceremony to bless their union. Again, a public business -in this case a bakery- refused to serve them.  The couple filed a complaint against the bakery, Sweet Cakes by Melissa.  Writers for the Portland Willamette Weekly wrote an interesting article exploring just how devout the Christian owners of this business were.  They write that the bakery was willing to make cakes celebrating a divorce party, a pagan solstice party, an out-of-wedlock baby shower, a non-kosher BBQ, and a party celebrating a researcher who had just received a grant to clone human cells.

This selective application of 'sincerely held religious beliefs' is also what led to a Lexington, KY, t-shirt printing company's loss over a complaint filed when it refused to print an innocuous Pride festival t-shirt but showed a history of printing a variety of sexually suggestive and crude t-shirts for other customers.

Yet, -and this point is key- the Oregon and New Mexico couples and the Kentucky gay organization would have been out-of-luck legally if they had lived in other jurisdictions.  Kentucky for instance has no civil rights law banning sexual orientation.  GLSO, the gay organization, and the offending printer both happened to be in Lexington, a city that passed a non-discrimination ordinance covering sexual orientation in 1999.

So, a gay couple that marries in Iowa and then goes home to rural Kansas and is refused a wedding cake by a local bakery has no civil rights protection and no way to legally fight the refusal.  So on the legal front, it is not marriage that is the driving force behind the civil rights cases but the enforcement of existing civil rights laws.

Let us ponder the impact of a RFRA on the cases in New Mexico, Oregon, and Kentucky.  These RFRA laws set a higher bar for the government to enforce regulations that defendants claim infringe on their sincerely held religious beliefs.  Professor Lund's article finds that such claims under a RFRA rarely if ever stand up because the state can respond by saying that it has a compelling reason to ban discrimination in employment, housing, and public accommodations against people based on characteristics with a history of discrimination.

So, in Indiana before the passage of this RFRA, it was not illegal to walk in and say to an employee, "Ellen, you're a lesbian.  You're fired.  Get out."  ...except in Marion County (Indianapolis) which has a local non-discrimination ordinance.  It was perfectly legal for Ellen's homophobic boss to fire her in most of Indiana.  Maybe the boss fired her because he just hates lesbians and is an atheist.  Maybe he is a conservative Christian who doesn't want to employ a lesbian.  It doesn't matter:  Ellen is out the door without a legal remedy to being discriminated against because she is a lesbian.

Indiana's new RFRA does not change that except possibly in Marion County.  Let's say the Christian boss and Ellen work in Marion County.  Ellen can now file a discrimination complaint with the local government.  The boss man can claim being forced to employ a lesbian in his public business infringes on his private religious views ...a la Hobby Lobby.  But the city can come back and say this burden on his religious views is trumped by a compelling interest in protecting citizens of Marion County from discrimination.  It now also opens the boss' actions to scrutiny about just how Christian is he?  What if he is openly employing bacon-eating divorcees with tattoos?  adulterers?  women who have previously had an abortion?  former convicted murderers? or a host of people whose lifestyles could be claimed to be in conflict with some interpretation of Christian values?

It also raises the question of whether a member of the erstwhile Christian-identifying Ku Klux Klan could fire an African American and claim via the RFRA that non-discrimination laws barring race discrimination infringe on his or her religious beliefs.

These RFRA laws and the media coverage they generate involve a lot of theoretical situations.  Lund's analysis finds these laws do not have much legal impact.

On the political front, however, religious freedom bills appear to be more about making a political statement against LGBT people and same-sex marriage.  It is analogous to the wave of post-Reconstruction Southern states that added the Confederate battle flag to their state flags in the 1890s once control of Southern state legislatures returned to local control.  So yes, blue states like Connecticut, Illinois, Rhode Island, etc. pass their own RFRAs in the 1990s, but they did so for different rationales.  The public record among supporters of the current wave of RFRAs is clear that these statutes are meant to send the message that conservative Christian values should trump Federal and state expansions of LGBT civil rights.  And thus that creates a difference between the intent of these laws in the 1990s and their new counterparts being passed this week.