This is the first time I’ve found one of Antonin Scalia’s arguments particularly persuasive. I’ll explain in a minute.
Like nearly everyone else, I’ve been trying to make sense of Indiana’s RFRA law and its implications. There has been a surprising dispute about even the construction of the law. There are a number of articles claiming, as Governor Pence did, that the Indiana law is “just like the federal law signed by Bill Clinton” or “like scores of other states“. Here’s the central thrust of both the 1993 federal law and the Indiana law:
(a) IN GENERAL. — Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) EXCEPTION. — Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
So in the primary language, these two laws are fundamentally the same. Except where they aren’t.
The Indianapolis Star compared the Indiana law with the federal law. The relevant differences aren’t in the central provision of the law but in the definitional and implementation items. First, the Indiana law takes a post-Hobby-Lobby definition of “person”, granting religious freedom rights to private businesses and non-profits. Second, the threshold for the burden on exercise is lowered from recourse after government action to the potential of a burden. In essence, it moves the timeframe from a complaint after the fact to a potential violation that has not yet occurred. Third, the Indiana law suggests that the infringement could happen “regardless of whether the state..is a party to the proceeding”. This opens the possibility of RFRA actions being taken between private parties.
So while the law looks the same on the surface, it isn’t the same. Given the Governor’s arguments, I have to wonder if the parallel wording was designed for exactly the defense that was given. Furthermore, the private arguments of some of the law’s most ardent supporters told a very different story, putting the hypothetical baker as the law’s beneficiary. The Indiana legislature and Governor Pence today put non-discrimination language as a preamble to the law (which eliminates the baker), but it doesn’t change what I think is the central issue.
Digging into the specifics of the Indiana situation led me to explore the history of Free Exercise cases before the Supreme Court. The first case (Reynolds vs. United States) was about a polygamous Mormon using his religious beliefs as a defense against a bigamy charge. The court ruled that because the bigamy law applied to everyone, the religious belief was irrelevant.
A second major case (Sherbert) dealt with an Adventist woman whose employer fired her for not working on Saturday. Her unemployment claim was denied by the state of South Carolina. The court ruled that the state’s action constituted an undue burden on her religious expression.
A third case is the one that prompted the federal RFRA. Alfred Smith had used peyote as part of Native American religious exercise. As a result, he was fired from his job at a drug rehab clinic. When he applied for unemployment in Oregon he was denied. The court ruled that since the drug prohibition applied to all Oregonians and didn’t single out Native Americans, there was no primary burden on religious expression.
“It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended….To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.’ To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.”
“… The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.” [Emphasis mine]
The federal RFRA law was designed in direct response to the Smith decision. But 20 years later, Scalia’s warnings sound remarkably prescient.
Mark Silk of Religion News Service wrote today that if the Smith decision had gone the other way, there might not have been an RFRA in response. I think he’s right. I’ll come back to why that’s the case.
But I want to argue that the problem with Indiana’s RFRA is inherent in the language of the law in the first place. The problem exists in the 1993 law and likely in all of the laws passed since then. The RFRA laws define religious exercise as “any exercise of religion,whether or not compelled by, or central to, a system of religious belief.” I’ve written before that a notion of religious belief separate from group practice is hard to understand. If we understood government infringement in terms of constitutional history, it would involve the limitation of a group’s central practice.
This is why the Sherbert decision makes sense. Worshipping on Saturday was a central issue to Adventists. In that regard, the use of peyote by Smith as part of religious ritual could have been defended, as long as this was established group practice. If, on the other hand, Smith and his friend had used the peyote as an individual option, the Oregon laws would hold. Furthermore, to suggest that “any” religious exercise — even if not central — is of equal weight simply defies logic.
A second problem with the RFRA laws is that they have a relatively open definition of religion. Past jurisprudence has extended the right of religious expression not only to minority religions (Holt vs. Hobbs, 2015, on beard length for Muslim Prisoners) but to nonbelievers as well (Torcaso vs. Watkins, Oregon 2014). News reports have already shown up in Indiana regarding the proposed Church of Cannabis and the Wiccan plan to dance naked at the state house on the next full moon.
While the Indiana law was championed by conservative Christians, it opens the door for a host of other unintended challenges as Jonathan Merritt observed last year. Satanic statues in Oklahoma and Florida have demonstrated that protections for conservative Christians can easily be co-opted by other groups. This may seem like an extreme example, but I can imagine an atheist group claiming religious exemption to a personhood amendment based on their “deeply held beliefs” about when life begins. In what way is that not coercion by the state?
The third problem with RFRA laws comes in the need for consistent application. Who decides which particular violation of one’s religion exercise should be pursued in court? Ben Corey wrote this tongue-in-cheek post about all the reasons why one could refuse to bake a wedding cake. If every possible violation of someone’s personal principles becomes an occasion for legal redress against the state, it seems we would rapidly approach the scenario that Justice Scalia described above.
Here’s my overall conclusion. The RFRA laws are hampered precisely because they are negative statements. Rather than attempting to carve out a safe place for religious practice in a pluralistic society where increasing numbers of people claim no religious affiliation, we’ve attempted to protect the status quo against incursion from the changing society.
This is doomed from the start. The sooner we can begin to discuss the legitimate role of religion (which will protect ministers and churches from performing weddings against their church’s discipline), the better we’ll be able to protect the legitimate rights of believers and nonbelievers alike.