Why the Uproar Over RFRAs?

Indiana passed a Religious Freedom Restoration Act, or RFRA, and the state has received a lot of attention as a result. Why the fuss? There are 20 other states that have RFRAs on the books, as does the federal government. Then I saw an ad in the New York Times with the headline “No Hate in Any State or in these United States,” with the next most prominent lines in the ad “Restore true religious liberty. Ask the President and Congress to Repeal RFRA.” Huh? The ad was sponsored by Freedom From Religion Foundation, a nonprofit “educational association of atheists and agnostics working to ban marriage between church and state.” Now I was really confused. How did Indiana’s RFRA law become about gay marriage?

I Googled RFRA and pondered Wikipedia’s description about the Religious Freedom Restoration Act of 1993, a bi-partisan bill that had unanimous support in the U.S. House, nearly unanimous support in the U.S. Senate (three senators voted against passage), and was signed into law by President Clinton. In 1997, the law was held to be unconstitutional as applied to the states; however, it continues to be applied to the federal government. Before the Indiana debacle and Alabama’s run at passing an RFRA, there were twenty individual states that passed state RFRAs. Their laws are largely based on the federal law, but apply to state government and local municipalities.

The story seems to start back in 1960. “In a case called Sherbert v. Verner, the Supreme Court established a basic standard for protecting the free exercise of religion. The government could pass laws that affected free exercise, the court said, only if it could demonstrate a ‘compelling interest.’ An example of such a compelling interest might be protecting public safety — or, following enactment of civil rights laws, preventing discrimination based on race. (As Ian Millhiser has pointed out at Think Progress, supporters of segregation sometimes claimed Christianity supported separating people by race.)

“But in a series of rulings from the early 1990s, federal courts allowed the government to infringe upon Native American religious practices — by, among other things, withholding unemployment benefits from people who’d used peyote. The Supreme Court reasoned that such laws were permissible because they did not single out religious practices — rather, they had neutral language and just happened to affect certain faiths adversely. Congress responded to these rulings by passing a federal religious freedom law.” (Source: “Why Indiana’s Religious Freedom Law is Such a Big Deal,” Jonathan, Cohn, Huffington Post, April 1, 2015)

Why was the federal RFRA passed in the first place, and who or what was it trying to protect? The law was put in place to “protect the rights of people to follow their faith against an overbearing government,” summarizes the opinion piece by David G. Savage of the Tribune News Service, titled “Religious ‘protections’ backfiring.”

There is an Oregon tie-in. From Wikipedia: “The Religious Freedom Restoration Act was a cornerstone for tribes challenging the National Forest Service’s plans to permit upgrades to Snow Bowl Ski Resort [located on Mt. Hood]. Six tribes were involved, including the Navajo, Hopi, Havasupai, and Hualapai. The tribes objected on religious grounds to the plans to use reclaimed water. They felt that this risked infecting the tribal members with “ghost sickness” as the water would be from mortuaries and hospitals. They also felt that the reclaimed water would contaminate the plant life used in ceremonies. In August 2008, the Ninth Circuit Court of Appeals rejected their RFRA claim.”

Not being an attorney, it was challenging to wade my way through all the legalese about the 1993 law and subsequent impacts of various rulings. How did a law embraced by democrats, republicans and many states erupt into a “divisive dispute over gay rights and religious freedom?” The federal RFRA figured prominently in the 2014 Hobby Lobby case, which gives personhood rights to a corporation and enabled Hobby Lobby to opt out of providing contraception based on religious objections. But the uproar over the Indiana law (and the proposed law in Alabama) is over LGBT rights and same-sex marriage.

I found Savage’s opinion piece to provide the greatest clarity, so I quote: “By overturning a key provision of the federal Defense of Marriage Act in 2013, the court set in motion a string of rulings across the nation that voided state laws banning same-sex marriage. By this June, a majority of justices is widely expected to legalize gay marriage nationwide.

“So while the marriage ruling opened the door for expanded protections for gays and lesbians, the Hobby Lobby decision offered new tools for those opposed to such moves. . .The [1993 RFRA law signed by President Clinton] says the ‘government shall not substantially burden a person’s exercise of religion.’ But the court’s conservative majority defined ‘person’ to include profit-making companies. Justice Ruth Bader Ginsburg, speaking for the liberal dissenters, called it a ‘decision of startling breadth’ that gives ‘commercial enterprises, including corporations’ a right to ignore laws that conflict with their owners’ religious views.

“Armed with the Hobby Lobby ruling and concerned that their statewide bans against same-sex marriage were in danger, conservative lawmakers in Indiana, Arkansas and other sates adopted their own versions of the federal religious freedom law and broadened the scope to include a business, company or corporation as a protected person. That small change created a large concern.

“By giving special religious rights to businesses, the law could encourage [small businesses, corporations and others] to take the law into their own hands and to refuse to serve gay customers.

“Bowing to public and corporate outrage over new state laws that critics warned might allow religiously minded businesses to turn away gay and lesbian customers, Republican state lawmakers quickly retreated, and it revealed an emerging consensus on a principle of national equality: Businesses open to the public must be open to all and may not discriminate based on their sexual orientation.”

And here’s the irony: “So rather than expand the scope of religious liberty, as conservatives had intended, the battles in Indiana and Arkansas instead accelerated the push for civil rights protections for gays and lesbians.” Thank you David G. Savage for your clear explanation of how we got from a law protecting religious freedom to a fight for protecting the rights of the LGBT community.

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