The Watering Hole, Monday, March 30, 2015: Indiana Wasn’t First, Connecticut Was, But Not For The Reasons You Think

Indiana Governor Mike Pence made headlines this past week when he signed into law Indiana’s version of a Religious Freedom Restoration Act (RFRA). Proponents say the bill is necessary to protect the rights of Christians to practice their beliefs freely. There is a growing belief (entirely misplaced IMHO) on the right that Christians who wish to discriminate against certain customers on religious grounds are being denied the right to practice their religion under the First Amendment. Opponents say that’s precisely why the bill should not be passed, because it will be used as an excuse to discriminate against the LGBT community on alleged religious freedom grounds (even though there’s no evidence that Jesus said to discriminate against “teh gays”, but we’ll get to that later.) The opposition has been calling for a boycott of Indiana ever since, and there is speculation about how this would affect the NCAA March Madness Men’s Basketball Tournament, whose Final Four competition is to take place in Indianapolis, Indiana. The NCAA says it isn’t sure right now. (Fun Fact: Indianapolis is one of only four state capital names that begin with the same letter as their states. Can you name the other three? The answer is at the end.) The push for the boycott spread to other cities, as the mayors of Seattle and San Francisco joined in the boycott. The news came that Angie’s List, based in Indianapolis, announced it was cancelling its $40-million headquarters expansion project because of the RFRA.

Writing for The Washington Posts’s column, The Fix, Hunter Schwarz observed that nobody has been calling for a boycott of the nineteen (possibly more) states that previously passed some version of the RFRA. According to the National Conference of State Legislatures (NCSL), there are nineteen states that have passed some version of the RFRA. How did there get to be so many states passing what some see as an unconstitutional law? Simple, the Supreme Court said that the National RFRA passed in 1993 could not be applied to the states. Wait a minute, you mean there’s a National RFRA? You might be wondering when the Republicans got that first discriminatory bill through, and which Republican president signed it? One of the Bushes, right? Wrong. It was passed in 1993 by a Democratic-controlled Congress (my now US Senator Chuck Schumer introduced it), and signed into law by a Democratic President Bill Clinton. Was anybody calling for a boycott when Clinton signed the National RFRA law? No, and there’s why. It had nothing to do with protecting the rights of Christians to discriminate against gay people back then. The rights of Christians to practice their religious beliefs, yes. Sort of. But not the ones you’re probably thinking about. Actually, Jesus really had nothing to do with the story at all. Let’s step into the Way Back Machine.

The First Amendment says that Congress shall pass no law respecting an establishment of religion (which means for those who wish otherwise that The Bible can never be the foundation of our laws, as that would constitute establishing a religion), nor prohibiting the free exercise thereof. Technically, this meant that your state could still pass a law respecting establishment of religion, or prohibiting the free exercise thereof. Until the Fourteenth Amendment came along, which says

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This meant that no state could pass a law which violated your rights as a citizen of the United States. Or so you would think. It took a long time before the Incorporation Doctrine was applied to guarantee that states could not violate your gifts under the Bill of Rights, which are not the only rights you have. (Apparently there is debate over this doctrine.) But from time to time the question would arise, “Can the government compel someone to do something that violates that person’s religious beliefs, or can the government prohibit someone from doing something that is part of that person’s religious beliefs?” At what point, in other words, is the government prohibiting the free exercise of religion?

For a long time, religious objectors only got exemptions to laws if the statute provided for them. Judges could provide common law exemptions, but these could be overridden by state laws. The right of a clergy to keep confessions confidential was an exemption provided by state laws. Things changed in the early 60s. The blog The Volokh Conspiracy explains:

But then in Braunfeld v. Brown (1961) the Supreme Court seemed to suggest that the Free Exercise Clause might sometimes constitutionally mandate exemptions. And in Sherbert v. Verner (1963), the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption. Wisconsin v. Yoder (1972) reaffirmed this, and the period from 1963 to 1990 is often labeled the Sherbert/Yoder era of Free Exercise Clause law.

Of course, a constitutional exemption model can never simply say “religious objectors get an exemption.” A wide range of generally applicable laws — murder law, theft law, rape law, and so on — must be applicable even to religious objectors. Even as to more controversial cases, such as bans on race discrimination in education, or generally applicable tax laws, the Court has found (even under the Sherbert/Yoder regime) that religious objectors’ claims must yield.

To distinguish cases where religious objectors win from those in which they lose, the Sherbert/Yoder-era Court used what it called “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs (e.g., when it banned behavior that the objectors saw as religiously compelled, or mandated behavior that the objectors saw as religiously prohibited). Under this strict scrutiny, religious objectors were to be given an exemption, unless denying the exemption was the least restrictive means of serving a compelling government interest.

But while the strict scrutiny test in race and free speech cases was generally seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, in religious freedom cases it was “strict in theory, feeble in fact” (Larry Sager and Chris Eisgruber’s phrase). The government usually won, and religious objectors won only rarely.

Then in 1990, the Court changed course: In Employment Division v. Smith, a 5-Justice majority returned to the statute-by-statute exemption regime, and rejected the constitutional exemption regime. So long as a law doesn’t discriminate against religious objectors, but generally applies to people regardless of their religiosity, it’s constitutionally valid. If religious objectors want an exemption, they need to go to the legislature. (This is an oversimplification, but let’s go with it for now.)

But before going with it, a little more background on the Smith, because it’s important to understand how it has nothing whatsoever to do with a business discriminating against someone based on religious beliefs. [From Wikipedia]: “The Court upheld the state of Oregon’s refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries. It was integrated with Christianity into what is now known as the Native American Church.” (See? Not the kind of Christians you were thinking about.) Back to the blog for more of the story.

Smith was broadly condemned, both by the Left and the Right. That coalition has since largely fallen apart, but it was strong back then: In 1993, Congress enacted the Religious Freedom Restoration Act, which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny). “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.” The vote in the House was unanimous, and in the Senate was 97-3.

RFRA was meant to apply to all branches of government, and both to federal and state law. In City of Boerne v. Flores (1997), the Supreme Court held that RFRA exceeded federal power when applied to state laws, but didn’t touch it as to federal law. Since 1997 (and in some measure before), about a dozen states enacted similar state-level RFRAs as to state law, and about a dozen more interpreted their state constitutions to follow the Sherbert model rather than the Smith model.

Therefore, the rule now is that there is a religious exemption regime as to federal statutes (under the federal RFRA), and as to state statutes in the about half the states that have state RFRAs or state constitutional exemption regimes. Religious objectors in those jurisdictions may demand exemptions from generally applicable laws that substantially burden the objectors’ practice, which the government must grant unless it can show that applying the laws is the least restrictive means of serving a compelling government interest.

All of that was written prior to the decision in the Hobby Lobby v. Burwell. Professor Volokh explains a bit about how the RFRA is supposed to be interpreted.

In interpreting the terms of RFRA — such as “substantial burden,” “compelling government interest,” and “least restrictive means” — courts look to Sherbert/Yoder-era Free Exercise Clause case law. The “findings” section of RFRA states that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests” (emphasis added), and cites Sherbert and Yoder favorably. And the whole point of RFRA was to “restor[e]” a body of rulings that were overturned by Smith — rulings that recognized a constitutional right to presumptive exemptions from generally applicable laws.

Unfortunately, this body of preexisting case law is not terribly broad or deep. As we’ll see later, for instance, it tells us less than we’d like to know about what counts as a compelling interest. But what counts as a substantial burden is somewhat clearer; we’ll see this in more detail in a later post, but for now, note that the following all constitute a substantial burden:

1. The government’s compelling someone to do something that violates his religious beliefs, or prohibiting someone from doing something that is mandated by his religious beliefs.

2. The government’s denying someone a tax exemption or unemployment compensation unless he does something that violates his religious beliefs, or refrains from something that is mandated by his religious beliefs.

3. As to state and federal constitutional regimes, it’s not clear whether the above also applies when the objector’s conduct is merely motivated by his religious beliefs (e.g., the objector thinks it’s a religiously valuable thing for him to stay home on the Sabbath, rather than a religious commandment) and not actually mandated by those beliefs. The federal RFRA, many state RFRAs, and RLUIPA expressly apply to “any exercise of religion, whether or not compelled by … a system of religious belief.”

4. The beliefs need not be longstanding, central to the claimant’s religious beliefs, internally consistent, consistent with any written scripture, or reasonable from the judge’s perspective. They need only be sincere.

Recall, though, that a finding of substantial burden on sincere religious beliefs simply shifts the burden to the government: The government may still justify the burden by showing that applying the law to the objectors is the least restrictive means of serving a compelling government interest.

As I said before, all of that was before the Hobby Lobby ruling. My first thought was that Hobby Lobby couldn’t argue that they had these rights under the RFRA because Hobby Lobby is a corporation, not a person. It turns out that I was wrong. Title 1, Chapter 1, Words denoting number, gender, and so forth:

In determining the meaning of any Act of Congress, unless the context indicates otherwise—
words importing the singular include and apply to several persons, parties, or things;
words importing the plural include the singular;
words importing the masculine gender include the feminine as well;
words used in the present tense include the future as well as the present;
the words “insane” and “insane person” shall include every idiot, insane person, and person non compos mentis;
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
“officer” includes any person authorized by law to perform the duties of the office;
“signature” or “subscription” includes a mark when the person making the same intended it as such;
“oath” includes affirmation, and “sworn” includes affirmed;
“writing” includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise.

And Justice Alito did indeed say the RFRA applied and that Hobby Lobby had standing as a person based on Title 1, Chapter 1. And despite the fact that Hobby Lobby was wrong in their beliefs, and despite the fact that they really weren’t sincere in their claims since they offered birth control coverage in their health care plans right up until the ACA became law, Hobby Lobby was granted their exemption. But that case had nothing to do with a business trying to deny services to people based on their sexual orientation. How did we get there by the time Indiana became the 20th state to pass their own RFRA?

When the Native Americans lost their centuries long-held right to use peyote in their religious ceremonies, everybody agreed this was wrong. Before the federal RFRA was passed, Connecticut and Rhode Island had passed their own versions of an RFRA, with the standard being the same as the one Smith reversed. Then Congress passed the RFRA, and in his signing statement, President Bill Clinton even mentioned that the purpose of this law was to reverse the Smith decision, which was about peyote use, not discrimination. This law was written to apply to both the federal government and to the states, so they stopped passing their own versions of the RFRA until the Supreme Court ruled it could not be applied to the states. Then in 1998 Illinois passed its own RFRA, with the language specifically saying it was in response to Smith (and to City of Boerne v. P.F. Flores, the decision which ruled the national RFRA could not be applied to states.) This was followed by Florida‘s RFRA law (which did not mention Smith or Flores), but Alabama‘s RFRA did mention them. BTW, an interesting thing about the Alabama legislation is its language that the bill be “liberally construed to effectuate its remedial and deterrent purposes.” That kind of talk from a very Conservative legislature? The following year saw a state RFRA law get vetoed. Arizona passed its own RFRA, but it was seen by many as being too broadly worded. In fact, the public outcry over how this bill could be interpreted (and the fact that Gov Jan Brewer wanted to address her state’s broken Child Protection System before anything else), led to Gov Brewer issuing a veto. This bill went further than its predecessors in that it contained a section that specifically allowed state licensed professionals to refuse their services to clients based on their own religious beliefs about anything, including sexual orientation. Remember, their beliefs do not have to be accurate, just sincerely held. After Arizona, South Carolina was the next to pass an RFRA. This bill is no more controversial than earlier ones in that it restores the standards put forth in the national bill that was intended to let Native Americans use peyote in their religious rituals. But pending legislation would allow clerks to deny marriage licenses to gay people based on the clerk’s personal religious beliefs. Idaho also has its own RFRA that’s harmless enough, but they also have legislation lending to amend the bill to include the right to discriminate based on bigotry. New Mexico passed just a basic RFRA bill, which declares the government must show a compelling interest in denying a presumptive right on a generic law. Oklahoma, on the other hand, also went pretty far in their RFRA bill, even specifying that nothing in the bill could be construed to “Authorize same sex marriages, unions, or the equivalent thereof.” But they don’t want to stop there, either. They also have bills pending that would allow anybody to deny doing anything for anybody else based solely on personal religious beliefs (however misguided, wrong, or not in accordance with the religion upon which they are supposed to be based.) I’m sure we’ll hear calls for boycotts of the Cowboy Hall of Fame when they pass. There was an eighteen-month lull in state RFRAs before Pennsylvania passed its version called the “Religious Freedom Protection Act.” This one should have triggered calls for boycotts, too, as it not only allows the same kind of personal discrimination based on personal religious beliefs the other bad bills did, but it also appears to directly refute the point of the national RFRA law that overturned Smith so Native Americans can legally use peyote. It would be hard for PA to argue this bill was in response to the Smith decision. Seven months later, in July of 2003, Missouri passed their basic RFRA. It did specify a number of ways in which the Act could not be used, such as supporting a defense to not pay child support, or as an excuse to harm anyone else. I’m glad one of the states thought about that. Their proposed amending legislation would apply religious freedom protection to students. Then things went quiet on the RFRA front for about four years.

In April 2007, the Commonwealth of Virginia showed all those religious bigots how to do it by re-passing a law originally passed by the Virginia General Assembly in 1786, before we officially became the United States under our current Constitution, weird language and spellings and all. Don’t believe me? After declaring that the following was passed in 1786, here’s the first sentence:

“Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishment, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, have established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical, and even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards which, proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors, for the instruction of mankind; that our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though, indeed, those are criminal who do not withstand such temptation, yet, neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he, being of course judge of that tendency, will make his opinions the rules of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail, if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them:

As the Break-Up Song says, “They don’t write ’em like that anymore.” But as fancy and high-falutin’ as this was (and I’ll thank Virginia not to mention my burthens in public again), they still want to amend this law with a specific right to discriminate by saying no one can be denied a state-issued license just because something they refused to do something that “would violate the religious or moral convictions of such person with respect to same-sex marriage or homosexual behavior.” Once again, it’s only the gays against whom “religious freedom” can be sanctioned. No mention of people wearing tattoos, customers at Red Lobster, women wearing clothing made from two different fabrics, or people who work Saturdays, though they should all face the same Biblical punishments as gay people.

It was about another year before Utah passed its RFRA. If you looked at some of the previous links, you may have come across laws regarding religious land use. Utah’s bill took this form, primarily, but it also adds a protection for religious organizations or people acting on behalf of same if they wish to discriminate based on their alleged religious beliefs. Are you noticing a pattern here? In the beginning, the RFRAs were passed to make up for the SCOTUS saying the national RFRA could not apply to the states. And most of the early ones simply said that the government had the burden of proof if they wanted to infringe on religious freedom, such as banning the use of peyote in religious ceremonies like your ancestors did for centuries. But then the bills started to evolve into declarations that you don’t have to do anything that infringes on your religious beliefs, especially if it involves gay people. Again, not all sinners, just the gay ones. It’s hard for me to believe you can justify it as a religious belief when it’s the only such belief you have when it comes to who to discriminate against. More than a year after Utah, Tennessee passed its RFRA, and while it seems on the surface to be the same as the early RFRAs in that it sets the proper legal test for violations of religious freedom, it also defines “substantial burden” in a way that could be interpreted to mean “not all that substantial.” Almost a year to the day later, Louisiana passed its version of an RFRA. Like many of the overly-broad versions, this ones allows a person “the ability to act or refuse to act in a manner substantially motivated by a sincerely-held religious belief, whether or not the exercise is compulsory or a central part or central requirement of the person’s religious belief.” The problem I have with this kind of language is the “sincerely-held” part. I don’t dispute that these folks think gay people should not have equal rights. I strongly dispute that it’s their religious beliefs that makes them feel this way. Three years after them, Kentucky passed something they claim to be some kind of RFRA, but it’s very short (compared to the other bills), and doesn’t go into as much detail. The KY legislature overrode the governor’s veto. I think the devil was in the details of other bills that set the parameters for when it’s okay to discriminate. Kansas followed up in July 2013 with its RFRA. As you’d expect from a hard-right state government, they allow people to refuse to act in a way that goes contrary to their supposedly deeply held religious beliefs. And, finally, Mississippi passed an RFRA law in 2014. Not only does it restore the Sherbert/Yoder compelling government interest test, it also has these two gems: 1) “Nothing in this act shall be construed to authorize any government to burden any religious belief.” (Notice they no longer mention “substantial burden.”); and, 2) “Nothing in this act shall create any rights by an employee against an employer if the employer is not the government.” In other words, the government can’t suppress your religious freedom, but your non-governmental employer can. Because unless you’re a business owner, your rights are meaningless.

When you go through these laws, it’s impossible not to notice the gradual transition from simply ensuring that the government applied the same legal test to claims of religious infringement that it did before Justice Scalia decided Native Americans had no constitutional right to do something they were doing before we invaded their land and stole it from them, to enshrining the right to discriminate based solely on claims of religious belief. You don’t have to actually believe these things to claim they permit you to deny service to people you don’t like. You just have to say they do, and it’s up to the government to prove why you shouldn’t be an exception to the rule. Despite being members of a Christian faith, the Oregon Native Americans weren’t claiming a right to deny another person their services because of their religious beliefs, they were claiming a right to do something their people were doing long before anyone came along, took their lands, and set up new laws. But the Christians who support RFRAs are undeniably using them to justify treating some of their fellow citizens in ways their Lord & Savior would undoubtedly disapprove (if he ever existed.) Nor can it really be argued that the original intent of the RFRA laws had anything to do with codifying a right to discriminate, yet that is clearly what was being done by Conservative legislatures that passed recent versions. And do not, for a moment, believe that this right to discriminate has anything whatsoever to do with religious freedom or beliefs. I call bullshit on that one. This has nothing to do with Religion and everything to do with Hate. Are any of these businesses who refuse to sell goods or services to gay people because of their religious beliefs refusing to sell their goods and services to any other category of people not living in accordance with Scripture? Are the ones who won’t sell wedding cakes to gay people also refusing to sell wedding cakes to divorced people looking to marry again? Are they open on the Sabbath, when many weddings take place? If there are things your religious beliefs compel you to do but you don’t, then you shouldn’t be allowed to claim your religious beliefs compel you to act in a particular way, especially if that particular way is a trivial aspect of your religious beliefs. It makes a mockery of the free exercise of religion. Nothing in the Christian faith compels followers to treat anyone the way Conservative Christians want to treat gay people, and only gay people. If these so-called Christians want to claim the Bible justifies their actions (a justification not supported by anything in the Constitution), then they should be required to be consistent and apply the same rules to other people they encounter. Or maybe they have to accept the fact that their religious beliefs are inconsistent with their Capitalistic beliefs. You cannot operate any business in accordance with Biblical Law without violating either the US Constitution or federal Civil Rights laws. It was one thing to simply restore the legal test in place before Smith, but as expert on religious extremism Marci A. Hamilton explains, these RFRA bills have gone too far. They are not about protecting religious freedom, they are about protecting religious bigotry. Too many people forget that before the United States came along, every nation had an official religion. And everybody was expected to practice that official religion, sometimes under severe penalty (death), and sometimes under threat of ostracism by the people around you. And, of course, in many countries you were not allowed to even think of practicing another religion. Our Framers said that was wrong. This continent was invaded by Europeans seeking a place to practice their religion their own way, which was a much more extreme version than that practiced back home. They didn’t think their fellow countrymen were religious enough. That’s right. The people who founded what the religious right claims is a Christian nation were religious extremists.

You can visit the Religious Freedom Restoration Act Perils site here.

Oh, and for those breathlessly waiting to find out who rounds out the Final Four of state capital names that begin with the same letter as their states, the other three are:
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(look away if you want to work it out for yourself)
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Dover, Delaware; Oklahoma City, Oklahoma; and Honolulu, Hawaii. How many did you get right? And how many did you get right without Googling the answer? Let us know. Thanks for playing.

This is our daily open thread. Feel free to discuss Religious Freedom, its Restoration, or anything else you wish to discuss.

How You Pay For Military Proselytizing

Regardless of what your personal religious beliefs are, you are paying to have some of our soldiers preached to against their will, forced to attend religious concerts and events, and punished for exercising their Constitutional and Military rights to refuse to participate. The events are called “The Commanding General’s Spiritual Fitness Concert Series”, Continue reading

When The Army Won’t Defend Religious Freedom

Though raised a Christian, Army Specialist Jeremy Hall, while stationed in Iraq, came to have different beliefs about the existence of God. He became an atheist. Little did he realize that while he, along with every other person who serves in our military forces, took an oath to support and defend the Constitution, some who took that oath did not take it to mean they had to support not having any religion at all. Specialist Hall had to be transferred out of Iraq due to threats he received because of his atheism. Even at his new assignment, Fort Riley, Kansas, the threats and intimidation continued. What I want to know is, how could so many people be ignorant about what religious freedom means?

When Specialist Jeremy Hall held a meeting last July for atheists and freethinkers at Camp Speicher in Iraq, he was excited, he said, to see an officer attending.

But minutes into the talk, the officer, Maj. Freddy J. Welborn, began to berate Specialist Hall and another soldier about atheism, Specialist Hall wrote in a sworn statement. “People like you are not holding up the Constitution and are going against what the founding fathers, who were Christians, wanted for America!” Major Welborn said, according to the statement.

Please continue reading at Pick Wayne’s Brain