RFRA's Rocky Slope

Indiana Governor Mike Pence, Wishing for a Vacation

By Finbarr Curtis

While Americans are divided about the meaning of religious freedom, at least everyone can agree that Governor Mike Pence has had a bad week.  When Pence signed into law the Indiana Religious Freedom Restoration Act (RFRA), he explained that he wanted to protect the religious freedom of "every Hoosier of every faith." This seemingly innocuous proclamation was met with a flood of objections from voices ranging from the Hoosier-bred David Letterman to the Hoosier-beloved NASCAR.  The critics worried that the law would give Indiana citizens a religious right to discriminate on the basis of sexual orientation.  Some Christian bakers, florists, photographers, and pizzeria operators confirmed these fears by announcing that they would refuse to provide services for same-sex weddings.

In response to the national uproar, Pence insisted that the act be amended to make clear "that this law does not give businesses the right to discriminate against anyone." One irony is that the amended Indiana RFRA states more clearly than the federal or other state RFRAs that it cannot be used for discrimination on the basis of sexual orientation (this is not to say that such discrimination is now against state law, however, as it was not outlawed in the first place).

So all good, then?  Well, not so fast.  Amending RFRA might actually highlight its power to erode the liberty of religious minorities.  What Pence's amendment shows is that the legislature can clarify what counts as religious liberty.  The problem is that what the legislature giveth the legislature can taketh away.  In theory, constitutional religious liberty claims would be inaccessible to legislative meddling.  As a state statute, RFRA would leave religious protections up to the whim of democratic majorities.

This is not exactly what RFRA was intended to do.  The federal RFRA hoped to instruct the courts to interpret the 1st and 14th amendments with the Sherbert test that the court used before the unpopular Employment Division v. Smith decision. The court responded to RFRA four years later by insisting that interpreting the Constitution was their job.  As Justice Kennedy wrote in City of Boerne v. Flores:

When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.  RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control.

So it would seem that Kennedy's logic would have rendered RFRA dead and buried.  The effect of the Boerne decision, however, was to say that even though RFRA is unconstitutional you can sort of use it anyway through a legal back door.  While congress cannot tell the court how to interpret the constitution, congress can tell the court how to interpret congress's own statutes.  RFRA would not apply to state laws because the only way this could work would be for congress to tell the court how to interpret the 14th amendment, and Kennedy's decision ruled this out.  RFRA continues to guide the court's decisions at the federal level, then, because these are matters of statutory law and not constitutional law.  For this reason, states like Indiana needed to pass their own acts.

In practice, RFRA rulings are constitution-like and is easy to confuse RFRA cases with constitutional cases.  There are significant differences, however, between constitutional rights and RFRA rights.  As legal scholar Gregory Magarian explains:

Congress has two ways around Federal RFRA - repeal of the Act itself or exemption of a particular action from the Act's effects - either of which it can achieve by simple majority vote.  Thus, Federal RFRA is far easier to abrogate than a constitutional provision.

This would apply to state RFRA's as well.  If it is possible to clarify that religious liberty is not a reason to discriminate on the basis of sexual orientation, it is possible to clarify all sorts of things.  In the short run, this appears to fix a problem for Indiana.  In the long run, it empowers various and sundry state legislatures to develop their own classification systems for what counts as religious liberty.

RFRA would not be the only time statutory law has sought to protect minority rights.  The Civil Rights Act would be a prominent example.  But unlike the Civil Rights Act, RFRA was an obvious ploy by powerful groups who hoped to use minority protections as a front for their own interests.  For one thing, the label "religious minority" raises lots of questions about what exactly classifies a minority religious group.  In the 2014 Burwell v. Hobby Lobby decision, a large evangelical corporation posed as a religious minority on the grounds that its Christian beliefs required protections from a hostile secular state.  RFRA's political appeal stems from the likelihood that it will be used primarily to protect Christians who refuse to make accommodations for religious and sexual differences.

For that matter, the RFRA debate glosses over the work of classifying what is "religious" in the first place.  The criteria of "sincerity" takes for granted that Christian bakers who sincerely believe they cannot bake cakes for same-sex weddings do so on religious grounds.  But there has been little explanation of what kind of religious exercise this is.  Presumably, sinners buy cakes all the time, and there are few Christian doctrines which explain why sin has transitive properties that attach themselves to neutral market transactions. 

One explanation for why Christians might refuse to bake a same-sex wedding cake is that they distinguish between private sinful behavior and the public endorsement of such behavior in a legal wedding.  This is an important distinction because it demonstrates that Indiana's RFRA arose not because private religious exercise was under threat but because Christians felt like they were losing their grip over public sexual regulation.  This means that the Indiana RFRA's primary purpose was to shore up Christian consensus.  The public pushback had less to do with abstract principles of religious liberty than with political pressure from powerful corporations.  Without corporate pressure, it is unlikely that minority groups would benefit from amendments to RFRA.

Making RFRA rights contingent on corporate support might bode poorly for the First Church of Cannabis's well-publicized request for a religious exemption under Indiana's new law.  It would be possible to imagine that Indiana could amend RFRA to clarify that it did not apply to drug laws.  After all, there are no constitutional exemptions for drug use on religious liberty grounds, only statutory protections under RFRA.

This is ironic in light of the Smith case that started it all.  In his Smith decision, Justice Scalia worried that a religious exemption for consuming Peyote could create a slippery slope in which all kinds of practices would require religious liberty protections.  In logic, slippery slopes are a fallacy.  But the possibility of legal slippery slopes can sometimes impose analytic discipline.  That is, you have to think about different possibilities that might arise from any legal precedent.  Of course, this supposes that abstract tests like "compelling interest" or "least restrictive means" somehow provide stable guidance.  In practice, judicial interpretation is subject to the same kinds of political calculations that legislatures might make.  For example, it is entirely possible that the majority in Hobby Lobby would have found a way to grant a constitutional exemption if RFRA had never been passed.

But tests like Sherbert and Smith do at least force justices to pretend to apply consistent principles.  This pretense tends to rule out unapologetic cherry picking of religious liberties.  State or federal RFRAs have none of these constraints.  The amendments to RFRA pose a new problem: a rocky slope in which legislatures have the ability to pick and choose which sorts of things religious liberty protects.  It is unclear what this will mean for the future of religious freedom, but it is likely to make for a bumpy ride.