Rethinking RFRA

If you want a good analysis of where the flurry of action and reaction on “religious liberty” laws the last two weeks left us, please read Sarah Posner’s account at Religion Dispatches, which clearly explains the differences between the original and revised laws in Indiana and Arkansas.

But beyond that, Sarah highlights a point that is often missing in otherwise solid refutations of the conservative claim that these new laws are just extensions of the federal RFRA enacted with so little controversy in 1993: the reinterpretation of that original RFRA by SCOTUS:

Proponents of these new RFRAs have continually argued that the federal RFRA, enacted in 1993, had widespread and bipartisan support. They frequently ask why those who supported RFRA’s passage in 1993 now protest the new RFRAs go too far.

The answer lies in how the courts have interpreted the federal RFRA. At the time, it looked like a needed fix to protect individuals who, for example, were barred from receiving employment compensation after being fired for smoking peyote, an essential part of a Native American ritual. In 20 years, though, it has been expanded, in Burwell v. Hobby Lobby, to confer rights on closely-held corporations seeking to deny their female employees the benefit of no-cost insurance coverage for birth control.

The debate on these laws is far from over. While the focus over the past week has been on their impact on LGBT people, Supreme Court precedent points to a wider reach. The innovation, if you will, of Hobby Lobby was not just allowing a closely-held corporation to invoke religious freedom rights. It was how the Court assessed, in favor of the corporation, the impact of religious freedom claims on third parties generally.

In other words, Hobby Lobby made the original RFRA controversial, and then conservatives convinced that “religious liberty” was a big political wedge issue (and at the same time, base-pleaser) tried to build on this new, “improved” RFRA with state laws that went much, much further.

So far, it isn’t working out too well for them.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.