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Saturday, November 16, 2013

"It was 20 years ago today . . ." (Happy Birthday to RFRA)

My friend and colleage Tom Berg has a post -- the title of which I have ripped off here -- noting that today is the 20th anniversary of the signing into law of RFRA.  Here is the post: 

On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise.  A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America.  A lot has happened in 20 years.  A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate.  But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:

... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.

A few remarks about that quote.  The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch.  That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values.  (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)

Notice the implications of President Clinton's remarks for these matters.  First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society.  Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens.  Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs.  Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."

In 1993 virtually every member of Congress agreed with those remarks and with the legislation.  In 2013, that consensus has shrunk.  But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.

(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)

I should confess, I suppose, that -- unlike Tom (and most other supporters of RFRA) -- I think (nervously) that Smith is probably right, i.e., that the First Amendment probably does not authorize judicially created exemptions from generally applicable, non-discriminatory laws that implicate religiously motivated conduct. (More here on that.)  All the more reason, it seems to me, to welcome RFRA-type legislation at both the state and national levels. 

Posted by Rick Garnett on November 16, 2013 at 12:11 PM in Religion, Rick Garnett | Permalink


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"And on the other hand the liberal project seems a more immediate threat to religious freedom."

I think this is true in some cases, but often misguided. I repeatedly see arguments that in effect ignore how certain policies INHIBIT religious freedom because the application doesn't meet the critics personal beliefs of what "religious" choices would entail. See, e.g., how some people ignore that same sex couples often are married in religious ceremonies. SSM is seen as some threat to religious beliefs ... that is, certain ones.

Posted by: Joe | Nov 19, 2013 1:25:34 PM

I understand how it's possible to think Smith is right and support a legislative policy like RFRA, but there is some tension -- this is seen by the Boerne decision, which held RFRA is unconstitutional as applied to the states.

The spirit of Smith is that such open-ended policies, as compared to more narrow exemptions, are problematic. The law (now as policy) again puts a lot of power in the hands of courts, which are ultimately the ones who determine if exemptions are needed. It is different if the legislature makes a specific effort to exempt religion when setting forth policy. The federal RFRA intended to return to things pre-Smith. Or even further -- see, e.g., how U.S. v. Lee is seen as not applicable when employees are denied contraceptive coverage.

As to Smith being wrong, I think many agreed with O'Connor -- it was wrong to have such a general applicable rule because people can think of various cases where religious practice should trump even if the law itself did not intentionally target religion. The prohibition shouldn't stop use of wine for communion concept. Like O'Connor, they would find a compelling enough reason in many cases for the policy in question.

I'm warily with that position. A national RFRA law might very well take things too far in the other direction. In the old system, there was a wariness to have courts override legislative policy. A legislative fix, however, seems to have legislative support and in theory can be altered. This leads to things moving too far in the other direction in certain cases. I'm inclined to think RFRA went too far but narrower RFRA-like laws, especially applied locally, are more acceptable.

I also support some room for free exercise protections -- such as the Hosanna-Tabor ministerial principle. The individual non-profit sacramental use of peyote to me also is something that should be honored. Some states so recognize. I don't think RFRA is needed to protect such things though -- too overinclusive.

Posted by: Joe | Nov 19, 2013 1:22:07 PM

It seems to me that RFRA passed precisely because no one felt there was a particular need for it except for the Court's surprising (at the time) decision in Smith. In other words, the precondition for RFRA was not just Smith but Smith seeming wrong. (Where this puts those of us who think Smith was right is an interesting question.)

RFRA seemed to reflect a national consensus in favor of religious freedom as exercised by individuals to which everyone agreed except the majority in Smith and some bureaucrats who didn't like peyote-smoking drug counselors. No one detected a conflict between RFRA, which was supposed to revive the Court's good pre-Smith jurisprudence, and the liberal project generally.

Indeed, one of the main engines of resistance was the pro-life movement, which worried that any "conscience protection" might end up rescuing abortion rights from its predicted imminent demise at the hands of the Rehnquist court. Thus the USCCB and NRLC opposed any version of RFRA that did not specifically negate claims of a right to abortion, which of course was never going to get through Congress. Then in 1992 came Casey and Clinton, and the pro-life organizations gave up.

Doug Laycock has also commented that no one seems to have predicted that for-profit businesses would try to use RFRA.

We live in a different context now and the conflicts between religious freedom, particularly as expressed by large and powerful churches, and other freedoms dear to the liberal project are more obvious. And on the other hand the liberal project seems a more immediate threat to religious freedom.

Posted by: Sykes Five | Nov 18, 2013 2:05:02 PM

I wonder if there is some sort of a majoritarian/counter-majoritarian split here? Liberals were upset by Smith (and supportive of RFRA because it was helping small minority religions, the kind likely to be targeted and not likely to receive accommodations from majoritarian processes. But RFRA has come to be used by adherents of majority religions to gain exemption from the type of civil rights/social welfare legislation that liberals favor.

I was thinking of this with respect to the current use of RFRA to challenge (successfully, at least in some lower courts) the contraception mandate. Liberals want women to have access to contraception as a matter of health care, and thus would not support a law that allows a secular corporation to opt-out of that obligation.

Posted by: Howard Wasserman | Nov 17, 2013 5:05:17 PM

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