Leiden Law Blog

RFRA: How has it evolved from anti-discrimination to encouraging discrimination?

RFRA: How has it evolved from anti-discrimination to encouraging discrimination?

Last winter a woman in the state of Indiana in the United States was arrested on charges that she beat her 7-year-old son with a hanger, leaving significant bruises on his back that alarmed school officials. The woman asked for the charges to be dismissed on the ground of Indiana’s religious freedom law, Indiana Senate Bill 101, which is also entitled the Religious Freedom Restoration Act (RFRA). She argued that she had the right to raise her child as she saw fit. She made the case that she was following her Christian faith, as the Bible stated “do not withhold discipline from a child; if you strike him with a rod, he will not die. If you strike him with the rod, you will save his soul from Sheol.” A judge refused to dismiss the case against her and she is due to go to trial in October.

According to Indiana’s RFRA law it is widely agreed that this woman is unlikely to win the case using a religious defence, since the law has two parts and her case may fail to fulfil one or both of them. Firstly a person must prove that a law or governmental action has placed a substantial burden on their ability to exercise their religious freedom. Secondly the state also has to prove that its substantial burdens imposed on a person’s exercise of religion must be in furtherance of a compelling governmental interest with the least restrictive means. This woman can hardly prove that the state was interfering with her religious practice by forbidding her from abusing her child. Moreover the state would have a far stronger argument in claiming that a child’s welfare is a compelling governmental interest. Although it is an extreme reference to RFRA, this national high-profile case has successfully brought Indiana’s controversial RFRA back into the spotlight. The RFRA (Indiana) was ratified in March 2015 by Indiana governor Mike Pence, who is currently Republican nominee Donald Trump’s running mate. The law sparked intense controversy and criticism concerning LGBT issues.

In 2014, in the landmark case Burwell v. Hobby Lobby, the U.S. Supreme Court recognised for the first time a for-profit company’s claim on the grounds of religious belief. After this unprecedented expansion of RFRA many states also expanded their state RFRA laws to include for-profit companies, including Indiana. Indiana’s RFRA stipulates that a governmental entity may not substantially burden a person’s exercise of religion unless it is in furtherance of a compelling governmental interest with the least restrictive means. A person in the law is defined as any individual, organisation, partnership or company, regardless of whether it is operated for-profit or non-profit purposes. The law came into effect on July 1st of 2015, which was a sensitive point in time. In June 2015 the Supreme Court legalised same-sex marriage nationwide. As a protection of religious communities several state legislations proposed allowing business owners to be exempted from anti-discrimination laws on the basis of their faith. Indiana’s RFRA is one of them, which means that for-profit business owners in Indiana can refuse services for same-sex couples on the ground of their religious convictions. Furthermore, Indiana’s RFRA can be referred to in a lawsuit, even when the burdens on religious liberty are not imposed by the government. Anyone can use RFRA as an argument when they feel their religious freedom is trumped by someone else’s restriction or by a statutory requirement. Compared to federal RFRA, Indiana’s RFRA gives religious objectors wider scope in terms of both the suing subject and applicable occasions. The purpose of Indiana RFRA as a legal justification for business owners refusing to serve LGBT people has been very clear from the beginning. The fact that the law gives a license for outspoken discrimination has instigated vehement public protests and governor Mike Pence had repeatedly had to clarify that the law is about protecting citizens’ religious freedom and not about inciting discrimination. It is one thing to clarify the “real” purpose of the law; but what it amounts to is quite another thing. According to the law, anyone in Indiana can refuse to serve anyone else on religious grounds.

Back in the 1960s, in the case of Sherbert v. Verner (1963), the Supreme Court established the standard that the government could only pass laws that affect religious exercise if it demonstrates a compelling interest. Sherbert was a textile worker who was asked to work from Monday till Saturday, which contradicted her religious belief that she must take the Saturday off. She refused that job and failed to find any other work elsewhere. Her claim for unemployment compensation was supported by the Supreme Court. The majority opinion was that denying Sherbert’s claim was unconstitutional, as the government created an infringement on a constitutional right to practice religion. Meanwhile, in this case, the government did not have a compelling state interest to justify burdening the regarding religious activity. The Supreme Court therefore protected the plaintiff’s claim out of prevention of discrimination.

The compelling interest test has, however, been absent from the Supreme Court’s interpretation of the free exercise clause of the first Amendment since 1980s. The lack of a demonstration of governmental compelling interest in burdening religious liberty eventually led to the RFRA. The federal RFRA was originally a reaction against the decision in the case Employment Division v. Smith (1990). The Supreme Court refused to give unemployment benefits to two Native Americans who were fired from their jobs due to their positive test results for the drug peyote, which was used in their religious ceremonies. This decision had infuriated religious communities, leaving them feeling that the first Amendment’s protection of religious liberty was insufficient. The RFRA thus re-established the standard that the government must have a compelling interest to substantially burden religious exercise even by general applicable laws. This is also the reason why the federal law of RFRA was needed in addition to the first Amendment. In 1993 the federal law Religious Freedom Restoration Act (RFRA) was passed by U.S Congress and signed into law by President Bill Clinton. In City of Boerne v. Flores (1997) RFRA was ruled unconstitutional by the Supreme Court, in that it could only be applied on the level of federal government. As a result, up until 2014, over 21 states have passed their state RFRAs due to the Supreme Court’s ruling in that 1997 case. The question for RFRA is ‘how can it be that RFRA has come to be associated with encouraging discrimination against LGBT groups when it was originally intended as a protection for minorities against discrimination? 

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