When the curtain opens on Sophocles’s Antigone, Thebes is reeling from a fratricidal war. The rivals for the crown have killed each other in battle, and the new king has ordered that no one may bury the body of the rebel leader. The play’s heroine confronts a tragic choice: Should she obey divine commandment and offer her slain brother funeral rites? Or should she obey the king’s command and defy the will of the gods?
The Religious Freedom Restoration Act, which became law at the federal level in 1993 and has been followed by 20 state-level versions in the decades since, attempts to shield Americans from the sort of choice Antigone had to make between the state’s command and her faith’s calling. In general, the RFRA statutes ensure that government cannot compel an individual to act against her faith unless (1) a compelling government interest demands it, and (2) the measure is narrowly tailored to serve those interests. But when Indiana Governor Mike Pence became the 20th governor to sign a state-level RFRA into law in March, legal tragedy degenerated into political farce as the statute became the latest staging ground in the ongoing national debate on gay rights.
Gay-rights activists charged that the Indiana law amounted to a license to discriminate on religious pretexts. The American Civil Liberties Union, originally one of the key supporters of the federal RFRA, denounced the statute as “a terrible and dangerous mistake,” and Hillary Clinton, whose husband signed the original act into law in 1993, lamented on Twitter: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against [people because] of who they love.” Everyone from the CEO of Angie’s List to the president of the NCAA had something to say about the Indiana statute, and none of it was good. When a similar backlash arose in response to the Arkansas religious-freedom bill, that state’s governor, Asa Hutchinson, quickly withdrew his support, musing that his own son had signed a petition against it and stating his concerns that it would have “a negative impact on our state’s image.”
Lost in all this fury was the simple purpose of these RFRAs: They are designed to stabilize an unsteady line of judicial precedent regarding how judges should treat laws that impair the First Amendment right to the free exercise of religion.
The tension between the public interest and private faith is written into the very text of the Constitution, which safeguards religious liberty and guarantees the equal protection of laws. The First Amendment provides that Congress shall make no law prohibiting the free exercise of religion. But sometimes laws of general application—laws that are designed to apply equally to all Americans—impair the religious practice of some Americans.
Justice William Brennan, celebrated as a liberal lion of the Supreme Court, first formulated the test later codified by the federal RFRA in Sherbert v. Verner. The 1963 case involved a claim by a Seventh-Day Adventist who had been denied unemployment benefits by the state of South Carolina because she refused to work on the Sabbath. The Court held that forcing the claimant to choose between abandoning a precept of her faith and forgoing her unemployment benefits was tantamount to fining her for practicing her religion. The government would henceforth have to show that any law impairing the free exercise of religion was narrowly tailored to serve a compelling government interest. This came to be known as the Sherbert Test.
In Wisconsin v. Yoder (1972), the Court reaffirmed the Sherbert Test, striking down a state statute establishing compulsory eighth-grade education on the ground that it violated the First Amendment rights of Wisconsin’s Amish community. In so doing, the Court was mindful of the potential danger that religious exemptions posed to the equal protection of laws. It explained:
Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.
In short, the Court found, faith enjoys a higher degree of protection under the Constitution than philosophy, and that is by constitutional design.
Then, in the 1989 case Employment Division v. Smith, the Court revisited the Sherbert Test. At issue was whether two Native Americans had been unlawfully denied unemployment benefits under Oregon law because they took peyote as part of a religious sacrament. The claimants argued they should be granted a religious exemption because state drug law placed an undue burden on their First Amendment right to free exercise of religion. Writing for the Court, Justice Antonin Scalia rejected the argument: “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’—permitting him, by virtue of his beliefs, to become a law unto himself—contradicts both constitutional tradition and common sense.” The majority ruled that the answer to the problem of generally applicable laws that encroach upon religious liberty is not to carve out constitutional exemptions but for legislative bodies to carve out statutory exemptions.
Congress stepped into the breach. In 1993, it enacted the Religious Freedom Restoration Act, whose stated purpose was “to restore the compelling interest test as set forth in [Sherbert and Yoder] and to guarantee its application in all cases where free exercise of religion is substantially burdened.” As initially enacted, the RFRA prohibited any government—federal, state, or local—from substantially burdening a person’s exercise of religion unless the government could demonstrate that the burden furthered a compelling government interest. In a 1997 case, the Supreme Court invalidated the statute’s applicability to state and local law. Congress then revised the RFRA to apply only to federal measures.
Since there were no longer protections below the federal level, states began passing their own versions of the federal RFRA, to ensure that religious liberty enjoyed the same standard of protection from state and local law as it did from federal law.
In many respects, the problems underlying the RFRA are representative of the broader challenge that the growth of government poses to the liberties enshrined in the Bill of Rights. As public regulation grows increasingly pervasive, the risk that it will encroach upon individual liberty grows correspondingly greater.
States are not passing RFRAs to protect the faithful from laws that specifically target the practices of religious groups or institutions. Such statutes are few and far between, and have been dispensed with in short order by the courts under existing First Amendment jurisprudence. Rather, RFRAs seek to protect First Amendment rights from the sort of ubiquitous regulatory creep that has come to define American government in the 21st century. For example, state laws requiring autopsies might conflict with the religious beliefs of the deceased and their survivors. Local zoning regulations might prevent homeowners from displaying emblems of their faith on private property. Rules establishing dress and uniform requirements might exclude Jews who wear yarmulkes from military service. And prison regulations may bar observant Muslims from having beards. It would be wrong to suggest that government lacks a compelling interest in any of these cases, all of which have been argued before courts; to take one example, the demand that there be exceptions to military dress creates a potential disciplinary hazard for the armed forces. Rather, the injury that such measures might cause to the individual’s right of free exercise is all the more reason to require that the government show that a law’s means are narrowly tailored to compelling government ends.
The judicial standards established by RFRAs are moderate and measured; the debate provoked by the Indiana law has been anything but. Presented a matter of weeks before the Supreme Court was due to hear oral arguments on the constitutionality of state bans on gay marriage, the statute unleashed a frenzy of public outcry and political posturing that has bordered at times on the surreal. Critics from Al Sharpton to the CEO of Apple Computers have denounced the Indiana law as a modern-day Jim Crow measure designed to relegate gays to a constitutional underclass. A #boycottIndiana campaign sprang up on social media, and Angie’s List announced that it was canceling a $40 million expansion project in the state on account of the law.
The governors of Connecticut, Washington, and New York banned state-funded travel to Indiana. Connecticut Governor Dannel P. Malloy went so far as to call Indiana’s law “disturbing, disgraceful, and outright discriminatory,” notwithstanding the fact that his state was the first to pass its own RFRA in 1993. (In fact, the Connecticut RFRA establishes a less exacting standard for religious exemptions than Indiana’s: A law must “burden” rather than “substantially burden” a person’s free exercise of religion.) And New York State lawmakers denounced the law as “legalized discrimination and injustice against LGBT people.”
Then, amid all the histrionics and hyperbole, a small-town pizzeria became Ground Zero in the broader culture war. When the owner of Memories Pizza in Walkerton told a local news reporter she would not cater a gay wedding because doing so would violate her religious beliefs, social media exploded with outrage. The business’s Yelp page was inundated with slurs, and threats poured in via social media. The pizzeria had to shut its doors temporarily because of the outcry.
Neither the federal RFRA nor its state counterparts sanction discrimination. The Indiana RFRA, like the federal statute, requires that courts apply the very same standard to laws that impair free exercise as they do to laws that discriminate against racial minorities. What is more, RFRAs stand against a broad backdrop of federal and state anti-discrimination law, not least of which is the Civil Rights Act of 1964. Its Title II prohibits discrimination in public accommodation on the basis of race, color, religion, or national origin. Thus a restaurant owner may not invoke his religious beliefs in refusing service to an interracial couple. Nor, for that matter, could he refuse to cater an interracial wedding.
Same-sex weddings are a different matter, but this has less to do with the RFRAs than it does with the unsettled position of gay rights under state and federal law. Some states, such as New Mexico and Connecticut, have passed local variants on Title II that require businesses offering their services to the general public to do so without regard to the sex or sexual orientation of patrons. In fact, in response to the backlash over the Indiana law, that state’s statute was amended to prohibit providers of public accommodations from denying goods and services to individuals on the basis of sexual orientation. Where such local anti-discrimination laws serve a compelling interest by the least restrictive means, gay rights must prevail over First Amendment claims under state RFRAs.
But where such protections are not in place, the right of free exercise of religion must prevail. The Supreme Court may well bring this debate to a close next summer, when it decides whether state prohibitions of same-sex marriage are constitutional. Whatever the outcome of that case, both state and federal courts will be bound to apply RFRAs accordingly. In the meantime, it is at best a benign mistake—at worst, cynical opportunism—to condemn RFRAs as mere pretexts for the violation of civil rights.
The right of free exercise is a civil right, and the First Amendment places very real demands on government. Not only do the Establishment and Free Exercise clauses require that government not interfere in religious belief, they also limit the government’s power to burden religious practice. RFRAs establish a clear test against which to balance the rights of the individual and the interests of the state. If the history of religious practice in this nation is anything to go by, the constitutional debate on faith will continue long after the constitutional debate on gay marriage is settled. And for as long as that is the case, these Religious Freedom Restoration Acts are likely to be the most reliable shield individuals have against government encroachments on religious liberty. It is the shield Antigone needed.