Supreme Court Justice Antonin Scalia once warned that too much religious freedom would be “courting anarchy.”
This week, his prophecy came true—at least on the airwaves and in social media.
Indiana’s new Religious Freedom Restoration Act (RFRA), passed in the wake of legal same-sex marriage for Hoosiers, caused widespread and angry debate. Critics say the Indiana law—and a pending religious liberty law in Arkansas—gives religious people a free pass to discriminate against gays and lesbians.
Supporters like Indiana Gov. Mike Pence say the law is needed to protect believers who feel under siege.
In the wake of the controversy, governors in Connecticut, Washington, and New York banned state employees from traveling to Indiana, while Star Trek actor and Twitter celebrity George Takei organized a #BoycottIndiana campaign. Corporate giant Wal-Mart, headquartered in Arkansas, has asked that state’s governor to veto the bill on his desk.
Under pressure, Pence has asked lawmakers to revise the law so that it can’t be used to discriminate.
Still few critics, as The Washington Post points out, seems to know or care what the law in question actually says. They just want to fight about it.
At the heart of the issue: the once-obscure federal RFRA law, which was signed into law in 1993 by President Bill Clinton, with broad support from Democrats and Republicans alike. Similar laws have been passed in 20 states, including one in Illinois that then-state-senator Barack Obama voted for.
“Because of RFRA, we don’t let whatever bureaucrats happened to be in power decide who gets religious liberty,” said Adèle Auxier Keim, counsel for the Becket Fund for Religious Liberty.
RFRA was passed in the wake of Employment Division v. Smith, a US Supreme Court case involving two Native American counselors who were fired for using peyote during religious rituals. The court ruled that religion was no excuse for breaking a law banning the drug’s use.
Scalia, who wrote the majority opinion in Smith, argued that allowing people to disobey the law on religious grounds would lead to chaos.
Instead of chaos, said Keim, RFRA created an orderly way for courts to resolve disputes involving religious liberty. She argues that it balances the government’s compelling interests while protecting religious rights.
The dispute over RFRA in Indiana and Arkansas isn’t the first time the law has caused controversy. In the mid-1990s, the Catholic Archbishop of San Antonio sued local officials using RFRA, after they blocked his attempt to expand a church in a historic district. Justices in that case ruled that RFRA didn’t apply to states.
Marci Hamilton, professor of public law at Yeshiva University, was the attorney for the city that opposed the church expansion. She’s become a leading critic of RFRA, and argues that the law was unconstitutional from the start. Now, she says, state lawmakers have turned the law into a tool for intentional discrimination.
“The original federal RFRA was misguided and a leap from prior First Amendment doctrine,” she wrote on her blog about the Indiana law, “but it was nothing like this new iteration in the conservative states.”
Lawmakers tinkering with the RFRA language in recent years have turned it into a political minefield, says J. Brent Walker, executive director for the Baptist Joint Committee for Religious Liberty, which has supported RFRA laws since the 1990s. The 1993 version protected believers against the government. Some newer state versions also protect corporations, and can be used in civil lawsuits between individuals.