Religious Freedom Restoration Act

  • April 7, 2015

    by Caroline Cox

    At Share America, Geoffrey Stone takes a look at the history of civil liberties during wartime.

    Dahlia Lithwick of Slate explains how arguments against same-sex marriage are impossible to reconcile with arguments in support of religious freedom acts.

    At The New Republic, Sam Eifling discusses the unusual circumstances that prompted Wal-Mart to oppose Arkansas’s proposed attack on gay rights.

    In The New York Times, Mitch Smith writes that the Wisconsin Supreme Court election has raised concerns about partisanship in the judicial branch.

    William Greider considers at The Nation how the Supreme Court decision in Hobby Lobby has provided inspiration for countless new conservative campaigns.

    Coral Davenport reports for The New York Times on how Laurence Tribe has become an outspoken – and unlikely – opponent of President Obama’s ambitious new plans to fight global warming.

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

  • October 1, 2014
    BookTalk
    God vs. the Gavel
    The Perils of Extreme Religious Liberty
    By: 
    Marci A. Hamilton

    by Marci A. Hamiltonthe Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

    *This post originally appeared on Hamilton and Griffin on Rights.

    How do you talk about the unspeakable? A decade ago, it was taboo to criticize religion or religious believers in print. They were a benign presence in America right next to apple pie.   I wrote God vs. the Gavel: Religion and the Rule of Law then to defeat this taboo, because it was masking a reality most Americans would want to know.

    There I stacked up transgressions of religious actors, including the sexual abuse and medical neglect (to death) of children, the forced marriage of adolescents into polygamous marriages, the violence of white supremacist or radical jihadist prison gangs, and even the questionable dealings of religious developers who forced incompatible uses like homeless shelters into residential neighborhoods. It was all for religion, with results that were not so benign.

    The destruction of the taboo was necessary in a just society. The perpetrators of 9/11 were religious zealots. So were the parents who let their children die. Roman Catholic bishops covered up for child abusers and endangered one child after another to protect the religious institution from scandal. Then the same pattern appeared across virtually all religious denominations. These were atrocities.

    Before these criminal acts reminded us of the power of religion to be both transcendent and horrible, Congress had ratcheted up the rights of religious believers by passing the misbegotten Religious Freedom Restoration Act (RFRA) in 1993 and 2000. Hardly anyone understood what it meant either time and no one was thinking of jihadists, clergy child predators, or children dying from medical neglect, in part because mainstream religious lobbyists intentionally presented a wholesome face to Congress, arguing that religious believers faced discrimination across the country that needed to be corrected by the statute.

  • March 21, 2014

    by Nicholas Alexiou

    The Religious Freedom Restoration Act (RFRA) should not be read to provide for-profit employers the extraordinary power to block women workers from access to the most effective contraceptive methods, states an amicus brief lodged with the Supreme Court on behalf of the Guttmacher Institute and Professor Sara Rosenbaum, an expert in law and policy surrounding healthcare concerns.

    The friend-of-the-court brief authored by Dawn Johnsen, a distinguished professor at the Indiana University Maurer School of Law (and a member of the ACS Board), and includes former U.S. Solicitor General Walter Dellinger as Counsel of Record explains that the for-profit companies – an arts-and-crafts chain store and a cabinet manufacturer – have “failed to recognize the vastly different effectiveness and cost of different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman’s method of choice, and the resulting consequences for women’s health, family and well-being, and risk of unintended pregnancy and abortion.”

    In the brief, Johnsen and Dellinger note that cost-sharing promoted by the Affordable Care Act is critical to allowing every woman to have access to the most effective forms of contraception available. It is claimed that hormonal intrauterine devices (IUD) are “45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use” and that “[a]lmost one-third of American women report that they would change their contraceptive method if cost were not an issue.” However, the cost of IUDs is an overwhelming issue for many Americans as implantation can cost “a month’s salary for a woman working full time at minimum wage.”

    To rule in favor of the corporations in these cases “would deny to female employees and their insured family members vital access to the full range of contraceptive methods, inflicting financial harm and erecting obstacles to needed medical care.”

  • December 16, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law at UNLV Boyd School of Law

    “In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v. Smith that all citizens must obey neutral laws. Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professor Marci Hamilton argued in briefing Boerne.

    Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.

    Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.