Tag: RFRA

Will RFRA laws “lead towards anarchy”?

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:

Federal

(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.

Indiana

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.

Which brings us back to Justice Scalia, who wrote the majority opinion in the Smith decision. Here are two relevantScalia paragraphs that seem to speak volumes about issues in the news in the last week:

“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.

“Indiana Doesn’t Discriminate”: Except for this one thing

Indianapolis is my home town.

I was born there in 1954, moved away in 1955, returned in 1965. I went to high school at what was then John Marshall high on the east side (it was downgraded to a junior high in 1986), graduated in 1972, and considered Indianapolis home until we got married in 1976.

During today’s interview of Governor Pence by George Stephanopolous, George asks the Governor five times if same-sex discrimination would be legal in Indiana (as one of the law’s supporters had claimed). In each case, Pence responded that people in Indiana don’t discriminate and that this wasn’t the purpose of RFRA. The purpose was to stop government overreach (I think this opens the state up to major litigation by nonbelievers but I’ll skip that for now).

I think about Pence’s non-discrimination claim in light of my history. Maybe individuals are kind and nice to everybody as the Governor suggests, but the history tells a more complicated story.

AttucksIndianapolis Public Schools was sued by the Department of Justice in 1968 because of the existence of de jure segregation (that’s segregation by law and not just by outcome). They made minimal attempts to adjust (closing the all-black Crispus Attucks high school in 1970). Here is a summary from the Indiana Historical Society:

In May 1968, the United States Justice Department filed suit against the Indianapolis Public Schools (IPS) to force the desegregation of its schools. In 1970 with the anticipation and threat of a federal court desegregation order, IPS began a minimal busing program within the district. The case was tried in July 1971. IPS was found guilty of de jure segregation. Finding for the plaintiff, the court charged IPS with “operating a segregated school system wherein segregation was imposed and enforced by operation of laws.”

IPS initially tried to address the concerns by playing around with the feeder system to the high school. Changing which junior highs went to which high schools was an baby step toward solving the problem. There was little preparation for the transition that took place.

I was in my senior year at Marshall the first year of the restructuring. While my graduating class had three black students out of a class of 350, the incoming freshman class in 1971 was 35% black. We did have a convocation the previous spring with ministers telling us of the importance of tolerance. There were also posters in the hallway that read “It takes both white keys and black keys to play the Star Spangled Banner”.

Late that fall, there was an unfortunate convergence of elements that put Marshall as the lead story on the evening news. We had what they said was a “race riot”. In reality, it was a group of upset individuals with a lot of yelling and a little bit of shoving (I got off campus right away). My math teacher said “the natives are restless.” The principal got on the PA, said that school was closed, and anyone on the school grounds in 45 minutes (I think) would be arrested for trespassing. IPS used city buses for transportation and nobody was prepared for the student body being dumped on the street.

The following year, Federal Judge Hugh Dillin established a court mandated busing program that moved inner-city black students to predominantly white high schools in the city and some surrounding townships within Marion County. Busing is never a popular solution but was seen as necessary to undo the nearly half-century pattern of segregation (the length of Attucks’ first run).

The DOJ oversight of IPS continued until 1998 — thirty years after the initial lawsuit. Here’s more from the Historical Society report:

In January 1997, IPS requested that the court lift the busing order. Dillin ruled that the order would be “continuing and permanent.” IPS appealed Dillin’s decision and later that year the 7th United States Circuit Court ruled that the busing order was never meant to be permanent and that IPS should be permitted to show why its African American students should return to IPS. In June 1998 a settlement was reached between IPS, suburban township schools, and government agencies when Dillin approved an agreement that would phase out busing of inner city black students to township schools by 2017.

The one-way busing to the townships ended in 2005 — 34 years after it began.

To review, Crispus Attucks was opened in 1927 as an intentionally segregated school. It took 78 years for the last impacts of that de jure segregation to go away. And that conclusion was reached only a decade ago.

Indiana was also a key location for Ku Klux Klan activity, centered around Tipton and Kokomo. According to “Hoosier History Live”:

“At its height in Indiana in the 1920s, one quarter to one third of native-born, white males in Indiana were Klan members,” Professor Safianow noted in an article in the Indiana Magazine of History about the discovery of the Hamilton County membership records and memorabilia.

Hamilton County is the county directly north of Indianapolis.

The Klan disbanded in Indiana and we’ve made great strides in pushing cases of individual racism underground. But those individual behaviors and attitudes opened the door for the segregation through law that followed.

This is why Stephanopolous’ continued questioning about whether discrimination is legal in Indiana was so central to evaluating the RFRA implications. It’s not a matter of individual attitudes but a matter of legal status.

Given Indiana’s difficult history with regard to race, it is virtually impossible to take Governor Pence at his word when it comes to sexual orientation.