Marci Hamilton

The New Wave of Extreme State Religious Freedom Restoration Act (RFRA) Legislation: Why It's Dangerous

By MARCI A. HAMILTON

Thursday, October 14, 2010

Despite the nation's unhappy and unfortunate experience with the federal Religious Freedom Restoration Act (RFRA) and its progeny, there is a new movement pushing for a new kind of state RFRA -- which is much more extreme than we've seen in the past.

In this column, I'll explain why the enactment of extreme-RFRA statutes or ballot initiatives would be a grievous mistake, and describe some of the movement, on the state level, regarding this issue.

The Supreme Court Decision that Triggered the Demand for a Federal RFRA

In 1990, the Supreme Court issued its decision in Employment Div. v. Smith. The case involved the denial of unemployment compensation to two drug counselors. The counselors (who were recovering from their own addictions) had signed an employment agreement not to use drugs -- yet they had used the illegal drug peyote during a religious ceremony for the Native American Church. In other words, they broke their employment contract and violated state and federal drugs laws. Unsurprisingly, they were fired. Then they filed for unemployment compensation, which was unavailable in Oregon for those who had broken the law.

Nevertheless, the counselors contended that the denial of unemployment benefits violated their freedom of religion. Thus, they requested the restoration of their unemployment compensation.

The Court held against them -- pointing out that they had violated clear state anti-drug law. It was a landmark decision, with prominent law professors like Professor Douglas Laycock and Professor Michael McConnell, among others, castigating the Court for purportedly "abandoning" religious liberty. The professors' arguments, however, were based on their selective citation of Supreme Court free-exercise cases, and they shamelessly exaggerated the Court's precedents in the area.

Religious lobbyists then immediately jumped on the professors' -- and others' -- bandwagon of criticism against the Court. And, in 1993, they persuaded Congress to pass the misbegotten Religious Freedom Restoration Act (RFRA).

As I learned not long after the Supreme Court invalidated RFRA in Boerne v. Flores, many groups welcomed the Smith decision. They included children's rights groups and local and state officials, all of whom work to protect the vulnerable in cases in which the harm was generated by religious believers.

As Professor James Dwyer explained at a conference on the 20 th anniversary of Smith that was held at Cardozo Law School last week, family-law professors did not view Smith as a disaster. Quite to the contrary, they hailed the decision for its capacity to protect the vulnerable from religious believers and organizations that would harm them.

Child safety has routinely been undermined by religious organizations arguing for religious liberty "guarantees" in cases involving medical neglect by faith-healing parents; the regulation of religious schools, camps and social-service providers; and child sex abuse by clergy. I discussed these issues in some detail in my 2007 book God vs. the Gavel: Religion and the Rule of Law, so Professor Dwyer's remarks did not surprise me, but they apparently did surprise many in the law-and-religion field -- testifying, I suppose, to the larger problem of the overspecialization of law professors.

On the RFRA issue, as I will explain, it is the family-law professors who are correct: RFRAs were, and continue to be, a dangerous legal innovation.

The Original Federal RFRA Was Struck Down by the Court -- But New State Versions of the Statute Were Then Enacted

In 1997, the Supreme Court held that RFRA was unconstitutional, on numerous grounds, in Boerne v. Flores, as noted above. Besides its constitutional defects, RFRA also presented a public-policy problem, for it created a presumption against every law, and in favor of the religious actor. Laws exist to protect the vulnerable. When a religious actor gets wide latitude to ignore the law, as RFRA invited such actors to do, the vulnerable get hurt.

After Boerne, religious groups scrambled to get a new, revised federal RFRA re-enacted, and to get state versions passed in all 50 states. About a dozen state RFRAs were passed in relatively short order -- before opponents were able to get their voices heard and slow the progress of the pro-RFRA movement.

These opponents included many worthy groups and individuals. Among them were organizations that lobby to protect children, like the American Academy of Pediatrics and the National Association of Regulatory Agencies; and cities, mayors, attorneys general, and district attorneys who wanted to see the laws on the books uniformly enforced, not selectively disregarded wherever religious individuals or groups were concerned.

A similar coalition stopped the proposed federal Religious Liberty Protection Act, which would have been close to a carbon copy of RFRA. But that was not the end of the story: Two specialized interests succeeded in obtaining a statute that uses the same approach for cases involving land use and prisons, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which I've written about here.

The doctrinal formula in the RFRAs was copied directly from Supreme Court cases that impose the strictest level of scrutiny known in all of constitutional law. Generally, under a RFRA, the claimant must prove that the law imposes a "substantial burden" on the claimant. If the claimant succeeds in providing this proof, then the burden shifts to the government -- which must defend its law by proving that the law serves a "compelling interest" and does so by employing the "least restrictive means" available. These are ridiculously tough standards to apply to neutral laws that apply to every actor in society.

Today's Push for a New Wave of Extreme State RFRAs

With that history in mind, the danger of the new, insidious wave of state RFRAs can be more fully understood. These laws demand the glare of the spotlight and deserve harsh public scrutiny, for these new RFRAs -- backed by Focus on the Family and the Catholic Bishops, among others -- go even further than their predecessors.

In Louisiana, Colorado, and North Dakota, religious lobbyists have pushed, or are now pushing, for a law that would work as follows: Religious actors would simply have to prove that the law they are challenging imposes "a burden" -- meaning even the most de minimis burden -- on them. If they meet that low standard of proof, then the government must prove that the law at issue serves a compelling interest and constitutes the least restrictive means of doing so. If the government does not meet this difficult standard of proof, the law cannot be applied to the religious actor. So conduct that is remotely related to religious beliefs or indirectly involves religious doctrine could be enough to overcome important laws.

This is overreaching of the rankest kind -- and it is why I am calling these new RFRAs "extreme RFRAs."

Before looking at the proposals in each of these three states, it is useful to look at the agendas of those behind the proposed legislation -- Focus on the Family and the Catholic Bishops.

Focus on the Family, of course, devotes much of its energy and resources to eliminating a woman's right to choose an abortion, to creating barriers to women seeking health care involving abortion or contraception (especially emergency contraception), and to obtaining rights for health care providers (including doctors, nurses, and pharmacists) to refuse to provide medical assistance to patients seeking contraception or abortion.

One of these new RFRA laws would go far to aid the group in its quest to create a right on the part of pharmacists to refuse to hand over emergency contraception, even if the patient has a valid prescription and a legitimate medical need. Focus on the Family is also apparently seeking to empower entire drugstore chains to refuse to provide emergency or ordinary contraception to patients, because the business owners object to women's obtaining such medical care.

The Catholic Bishops, too, seek to reduce women's constitutional rights and social power. But it is highly unlikely that they are in this particular arena solely because of the privacy issues that seem to be motivating Focus on the Family. Instead, it is likely that we are seeing another manifestation of the Catholic Bishops' agenda to cover up, and resist responsibility for, clergy child sex abuse.

In each of the three states where this new, extreme version of RFRA has been tested, the bishops have faced, in recent years, meritorious lawsuits brought by victims of Catholic priests' abuse. The lawsuits have been filed against the institution and the hierarchy for their cover-up of that abuse and their role in multiplying the number of victims and aiding abusers. This new legislative front, without a doubt, is just one more example of the hierarchy's working every angle to avoid having to be responsible for the horrific abuse that the bishops and the Vatican have caused.

This abuse is widespread and extraordinary. The most recent data shows that approximately 10% of Catholic priests have abused children. (The parallel statistic for the general population is 2%.) And it is certain that the cover-up and the danger to children persist today. The remarkable website bishopaccountability.org has documented this ongoing public menace.

The very name of the Religious Freedom Restoration Acts connotes America and apple pie. After all, who could disagree with a law in favor of restoring religious freedom, which is our constitutional right? The laws sound liberating, not harmful.

Yet the laws' name is highly deceptive: Women and children predictably suffer when such legislation is proposed and passed. And the new laws are the worst: Providing such a low threshold for a religious group or individual to avoid justice and accountability virtually guarantees that such groups will be able to hide behind high legal barriers before they ever have to take responsibility.

Three Disturbing RFRA Measures: More on Each State's Proposed RFRA

As noted above, the three states to have seen activity with respect to this new, extreme version of the RFRA are Louisiana, Colorado, and North Dakota.

Previously, lobbyists had succeeded in stopping the spread of these laws through the legislatures. Accordingly, these new RFRAs are being been proposed as ballot initiatives. In other words, members of the public are being asked to vote in favor of a law that contains legal terminology that they do not understand, and is wrapped in a title that invokes ideas to which they are understandably attracted. For those concerned about the protection of children and women's rights, such ballot initiatives need to be stopped.

RFRA Developments in Louisiana

In 2009, the Louisiana legislature considered and almost passed a bill that would have put an extreme RFRA on the ballot. The Louisiana Family Forum backed the bill, illustrating that RFRAs are an important tool for the anti-choice movement.

In Louisiana, groups that had backed RFRA in 1993 when the original was first passed have since changed their views -- apparently realizing that laws they really cared about were being attacked under RFRAs.

Indeed, such groups have become active in lobbying against this new, extreme RFRA variant. Those groups include Americans United for Separation of Church and State and the Anti-Defamation League. Other groups fighting such legislation in Louisiana included the ACLU-Louisiana chapter.

After the ballot initiative had failed in Louisiana, the legislature then passed a "regular" RFRA, with strict scrutiny for every law. That is a very bad idea, and will serve as an unfortunate aid to the Catholic Church hierarchy's litigators in clergy-sex-abuse cases, but at least it is not as bad as the extreme RFRAs that are being proposed.

RFRA Developments in Colorado

In Colorado, in 2010, the national and local Focus on the Family groups, along with the Catholic Conference, started the petition process to place a substantially similar extreme-RFRA amendment on the state's ballot. 

Organizations in opposition challenged the ballot initiative on technical legal grounds related to the validity of a ballot initiative, and succeeded in halting its progress. Right now, there is an agreement in place that no one will collect signatures on this measure this year. The opposition was led by the Interfaith Alliance-CO, which partners with Americans United.

RFRA Developments in North Dakota

The North Dakota extreme-RFRA movement did not obtain enough signatures to put the so-called Religious Liberty Restoration Act on this year's ballot. They have until next spring, though, to continue adding names.

The North Dakota extreme RFRA's supporters included the Catholic Conference, Alliance Defense Fund, Break Point, Chuck Colson (the founder of Prison Fellowship Ministries, which works to install evangelical Christian programs in prisons), Family Research Council, Focus on the Family, and Focus on the Family Action.

There are those who would say that we have been experiencing a contemporary "Great Awakening" and that RFRA and its progeny are evidence of it. In fact, though, if one follows the ways in which religious groups can too often victimize children and women, the extreme RFRAs tell us that we are actually experiencing a great darkening cloud on our horizon.

The Framers intended for the United States to have the benefit of ordered liberty, which included the common-sense insight that there is such a thing as too much liberty. The extreme RFRA variant goes well beyond those boundaries.

Editor's Note: Institute for American Values was originally listed as one of the organizations supporting extreme RFRAs in North Dakota, based on its repeated inclusion on the North Dakota Family Alliance's site. However, the Institute was not specifically mentioned in the RLRA section of that site, and we have since heard from the Institute that the statement that it supports extreme RFRAs was in error. We apologize for the error.


Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com .

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