Why Indiana’s Religious Freedom Law Isn’t Just Morally Wrong — It’s Bad Law

There’s been an ongoing controversy over Indiana’s adoption of a version of the Religious Freedom Restoration Act (RFRA), largely because of the potential it grants for the discrimination against LGBT people on religious grounds. This week, Apple’s CEO Tim Cook penned an op-ed for the Washington Post wherein he argued that the laws “go against very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.” He’s right on both counts, but the first is one that warrants exploring further, because the RFRA in all its incarnations isn’t just a bad law — it’s a fundamentally ill-conceived one.

The RFRA was, in its first incarnation, a federal law, signed into effect by Bill Clinton in 1993 — and even then, it was always unclear why such a law was necessary, given the constitutional protections of religious freedom that are set out in the First and Fourteenth Amendments. Since the federal law’s provisions were partially struck down in 1997 after the Supreme Court held that it was unconstitutional as applied to states, some 20 states have signed their own versions into law, each of which has its own, subtly different, provisions. And that’s how we’ve ended up with the morass in which we find ourselves today. It may well be, as Indiana’s speaker Brian Bosma claimed this morning, that in some cases the laws’ adverse consequences are “unintended,” but generally, if you don’t go passing unnecessary laws, you don’t have to worry about how they might be interpreted.

Because the thing is: the RFRA is and has always been a solution in search of a problem. People who argue for its necessity suggest that the Supreme Court’s interpretations of religious exemptions became unreasonably strict, and that people’s right to object to being forced into actions that conflict with their religion needed to be set out explicitly in statute. The case that’s usually cited is Employment Division v. Smith, wherein the Supreme Court decided on the case of two Native Americans denied unemployment benefits by the State Government of Oregon after being fired for testing positive for mescaline, which they had used in a religious rite. The Court held that the Oregon Gorvernment was within its rights to deny the benefits, ending a 30-year period during which the Supreme Court had held that religious exemptions to laws were an implied constitutional right.

The case prompted public outcry, and the Federal RFRA was duly passed in 1993. It enshrined in law a principle that sounded inoffensive enough: “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.” But what does “least restrictive” mean? How does the government go about proving this? And most importantly, what about the collateral damage: the people whose own rights are infringed by the statutory privileging of religious beliefs? And why should statutory privilege be granted to sincere beliefs anyway? I might sincerely believe that I am a small bunch of overripe bananas, but that doesn’t make it so. I might also sincerely believe that God is telling me, personally, on the telephone, to make sure no black people ever get hired at my company, but that doesn’t mean I should be able to discriminate like that without falling afoul of the law.

Religious institutions, of course, don’t see it that way. The Indiana Catholic Conference released a statement last week, noting that “until recently, it was simply unthinkable that one person would attempt to force another to act contrary to that person’s religious conscience.” This is true — but that’s not, as the ICC seem to think, a good thing. And sadly, of course, the opposite has never been true: it’s never been unthinkable that a religious person would attempt to force another to act contrary to that person’s secular conscience — indeed, that’s pretty much what religions do, in that it’s what their mandate to win converts to their faith requires.

The truth is that for all people like the Indiana Catholic Conference can complain about their toes being trodden upon, if anything, their influence in this country remains disproportionate and unduly privileged: their freedom to practice is enshrined in the Constitution, a benefit that isn’t extended to a whole lot of other civil rights. (Indeed, LGBT people would probably have more rights in this country if they decided that their sexuality was, in fact, a religion.) And anyway, it shouldn’t be unthinkable to force someone to act contrary to their religious conscience if that conscience requires them to break the law. If doing so is genuinely unconscionable — a hypothetical law against wearing hats inside that forced Jews to remove yarmulkes, for instance — then it’s a problem with the existing law, and solving that problem involves amending that law.

This brings us back to Employment Division v. Smith, where the problem was (and remains) the unreasonable and pointless strictness of US drug laws. The firing of Native Americans for participating in a religious ritual that involved peyote is one of the limitless litany of injustices catalyzed by this country’s laws on drugs, not a special case that required clarification because it involved religion. More generally, the principle established in that case seems perfectly reasonable — that, as Volokh explains here, “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 the fundamental problem with the RFRA and its state-level equivalents. If a law discriminates against anyone, on the basis of religion or otherwise, it’s a bad law. Adding another poorly drafted law to try to ameliorate the effect of the first bad law is like adding bad code to more bad code instead of deleting the bad code and writing something that works. More generally, laws are absolute for a reason. If the law says you can’t discriminate against people for being LGBT, then that’s what it means (or, at least, that’s what it should mean). It doesn’t mean that you can’t discriminate against people being LGBT unless your interpretation of a 2000-year-old book tells you to. And it certainly doesn’t mean there should be a law passed enshrining that exemption.