Once again state legislators have proposed a Religious Restoration Freedom Act to protect persons whose religious practice is burdened by state action. The recent furor over RFRAs in Indiana and Arkansas could come to North Carolina.
RFRAs are hardly radical. The federal government and 20 states have statutory protections for religious freedom very similar to the N.C. bill.
A nearly unanimous Congress passed the federal RFRA in 1993. Ted Kennedy, Nancy Pelosi, Harry Reid and John Kerry all voted for it. The ACLU and almost every other civil rights group supported it.
The federal and state RFRAs were legislative responses to a controversial 1990 Supreme Court decision which held that the First Amendment’s Free Exercise Clause doesn’t entitle religious persons to exemptions from generally applicable laws. So, if a public school applies a “no hat” rule to both baseball caps and Jewish yarmulkes, there’s no free exercise violation because the school isn’t targeting religious practices.
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The proposed NC RFRA states that “[s]tate action shall not burden a person’s right to exercise religion, even if the burden results from a rule of general applicability” unless it is “essential to further a compelling governmental interest.”
This language is nearly identical to the federal RFRA and other state RFRAs, which restore the pre-1990 religious exemptions. Even under the pre-1990 rules, religious persons seeking exemptions from generally applicable laws (including nondiscrimination laws) didn’t always win – courts were responsible for striking sensible balances between the competing interests and figuring out when religious exemptions should be granted.
Many gay individuals have suffered hateful forms of discrimination, so their concern about whether RFRAs will give businesses a “license to discriminate” against them is understandable.
The fear that such discrimination will occur is greatly exaggerated. The overwhelming majority of religious business owners have no objection to serving gay persons meals, renting them hotel rooms or selling them products. If they deny such services, they almost certainly will lose in court even if NC’s RFRA passes.
Courts have enforced RFRA laws very cautiously. In fact, no RFRA has been used successfully to defend discrimination against members of the LGBT community in the 22 years since Congress and states began adopting such laws.
from nondiscrimination laws might properly succeed. Churches, synagogues, mosques and other nonprofit religious organizations should not be required to perform weddings, hire employees or accept members if contrary to their religion. Kosher butchers should not be forced to sell pork to non-Jewish customers or Christian marriage counselors compelled to counsel non-Christian couples.
For-profit businesses owners might be exempted from nondiscrimination laws if personally required to provide creative services for gay weddings when those services are readily available elsewhere. For many religious persons, weddings are profoundly religious events and providing their creative services is seen as taking part in the celebration of same-sex marriage. They can’t participate without violating their religion.
Religious merchants who don’t want to facilitate same-sex marriages still will have an uphill battle in seeking exemptions under state RFRAs. Such laws do not guarantee the merchants will win when sued for discrimination. They simply allow courts to consider whether an exemption might be proper in a given case. To date, every court has ruled against the religious photographer, baker or other creative service provider.
We have a long history in America of respecting the right of religious believers to exercise their religion so long as it does not cause undue harm to others. If the creative services are available from other merchants, why should the law force persons to violate their religious consciences? Should gay rights trump all other rights, including the right to practice religion free from state coercion? Once you fine or shut down photographers and bakers, who’s next?
Opponents of NC’s RFRA make extreme claims about the results it will produce, but they have no examples of court cases actually reaching such results.
At the 1962 Yale commencement, President John F. Kennedy said, “Too often … we enjoy the comfort of opinion without the discomfort of thought.” Public debate on the N.C. bill should be driven by facts and reason, not demagoguery. No one who understands the operation of RFRAs over the past 22 years seriously expects them to be used to justify widespread discrimination against gays.
E. Gregory Wallace is a law professor at Campbell University School of Law. The views expressed are his own.