Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


More Light, Less Heat Needed on State Religious Freedom Bills


Stanley Carlson-Thies

03-28-2014


By Stanley Carlson-Thies

March 28, 2014

The freedom to exercise one’s faith out in the world–beyond personal belief and worship–has become very contested in the United States, and the impulse to confine and curtail religious freedom when it gets in the way of other rights has been steadily growing. But it seems to have become supercharged recently as some groups and commentators and many in the media have used deliberations over religious freedom bills in various states to try to permanently rebrand religious freedom that goes beyond thought and worship to be discrimination.

The actual goal of these bills seems to be preservation of the status quo in these states, where marriage has not been redefined and anti-discrimination laws do not reference sexual orientation. But that status quo might be upset any day by a judge who declares same-sex marriage to be constitutional. Because judges are not empowered to craft religious freedom protections to accompany marriage redefinition, it is up to the legislatures to do so. That means religious freedom bills.

The bills have been widely pilloried as anti-gay measures, with seemingly little effort being made to actually understand the texts. The Arizona bill was designed to clarify two aspects of the state’s existing Religious Freedom Restoration Act. State RFRAs are modeled on the federal RFRA, which was supported by a broad coalition of religious freedom and civil rights organizations and adopted with virtually no opposition just twenty years ago.

RFRA laws do not guarantee any particular religious freedom, but they give religious people and organizations the opportunity to assert a religious freedom claim against a law that they say imposes a substantial burden on their freedom to exercise their religion. If they make such a claim, a court will weigh that against the government’s argument that it has a compelling interest for the law it adopted and that it has no less restrictive way of securing that interest. If so, then the religious claim is denied. But if the government cannot show that it has a sufficiently strong reason to override the religious freedom right, then--and properly so--it cannot suppress that exercise of religion.

Top experts on RFRA and church-state relations, some of whom support same-sex marriage, wrote a letter to Arizona’s governor as she was deliberating what to do with the RFRA-amending bill. The letter pointed out that the bill simply clarified two aspects of Arizona’s existing RFRA. These two aspects have been cast into some question in court battles involving other RFRAs: (1) RFRA’s protections apply in the case of businesses and not only to churches and religious nonprofits; (2) RFRA applies not only when the government challenges a religious person or organization but also when a private citizen sues a religious person or organization, claiming the violation of a government law or regulation.  But RFRA never guarantees any outcome­--no automatic victory for religion.

As the letter pointed out, there is very good reason to regard these amendments as technical corrections and clarifications of what RFRAs have meant all along. Indeed, Stanford law professor Michael McConnell, although he signed the letter, has said he does not think the Arizona amendments were even needed: what RFRA requires ought to be clear to the courts, even without the bill’s clarifications.

The Kansas bill is a somewhat different matter. Rather than a RFRA bill, it was designed to protect religious exercise specifically in the context of a possible judicial decision requiring marriage redefinition in the state. The bill would have made it clear that persons and organizations (such as marriage counselors, adoption agencies, churches that let wedding parties use their facilities, wedding professionals) who, for sincere religious reasons, do not recognize same-sex marriages, could not be compelled to help conduct or celebrate such marriages or treat them as equivalent to traditional marriages.

But the bill was poorly crafted. It wrongly proposed that if every government official in an agency that deals with same-sex marriages has a religious objection, then the government agency may simply refuse to carry out its duties to the same-sex couples. That cannot be right. It is incumbent upon the government to fulfill its duties, even at the expense of limiting the religious freedom of its own employees.

The storm over these religious freedom bills revealed some deeply troubling trends, among them the flagrant misrepresentation of the content and effect of the bills, the casual dismissal of religious freedom rights, and the inclination of some opponents of the bills to assert that since their own religious consciences did not need protection, no one else’s needed protection either.  It is not an easy matter to protect everyone’s legitimate rights when the people and organizations involved want opposite outcomes. Coming to a just equilibrium is made all the harder with inaccurate information and inadequate simplifications and slogans.

The RFRA bill more recently proposed in Mississippi has not drawn the same media and activist attention, but shows an equally troubling erosion of support for religious freedom. A group of respected constitutional scholars has protested the Mississippi bill because its protections might eventually result in a religious claim being upheld against a charge of discrimination—even though they can point to no real issue. As church-state expert Tom Berg points out, for the sake of avoiding a hypothetical decision they would oppose, the scholars are undermining a law that would protect religious minorities against real opposition.  Although there is no social media storm this time, the scholarly opposition may have the same effect of tarring religious freedom with the anti-gay label, to the detriment of mutual respect and genuine progress. 

- Stanley Carlson-Thies is the president and founder of the Institutional Religious Freedom Alliance. He also serves as a Fellow of the Center for Public Justice.



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