I would like to loudly applaud Nevada and Georgia for declining to drink the RFRA Kool-Aid this year. Smart. All RFRAs are a bundle of negative unintended consequences and bad public policy, as I explain in God vs. the Gavel: The Perils of Extreme Religious Liberty and here.
There is no worthwhile fix. Indiana Governor Mike Pence and Arkansas Governor Asa Hutchison were not as smart, as they apparently believed that a RFRA can be “fixed” to avoid political fallout. They are obviously operating from a platform of misrepresentations about what RFRA does and a lack of knowledge regarding the crazy ways RFRA interfere with their state’s laws and increase litigation at the state’s expense.
Last week, Jeb Bush and Bobby Jindal tried to embrace the RFRA serpent as though it will not sink its fangs into them. Bush quickly ran into trouble. Jindal will as well if he persists on the path he outlined on Meet the Press.
In God vs. the Gavel, I lay out the history and language that show RFRA in its true colors. Its advocates are not so concerned about “true” colors. RFRA proponents trade on the public not knowing there is a large gulf between the RFRA and the First Amendment.
Politicians keep saying in the context of the RFRA debates that they have to support “religious liberty” as though the RFRAs are just one more item in the “mom and apple pie” list. Not so. The truth is that the RFRA standard is alien to the First Amendment. Yes, RFRA advocates and even prominent academics have “sincerely” argued that RFRA is just ordinary religious liberty and that it “restores” a First Amendment standard. I simply state the truth when I say that is false.
They are banking on the likelihood that Americans—even the media and legislators–will not notice that the Supreme Court itself rejects their RFRA-First Amendment equation. In Boerne v. Flores, the Court said that RFRA “appears . . . to attempt a substantive change in constitutional protections.” In Cutter v. Wilkinson, the Court characterized the same standard, as found in its sister statute, the Religious Land Use and Institutionalized Persons Act, as “legislative action [not] compelled by the Free Exercise Clause.” In Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, the Court described RFRA as the “constitutional rule rejected” for the First Amendment.
Finally, in Burwell v. Hobby Lobby, the Court stated that it would be “absurd” to think that RFRA is simply the First Amendment codified and that it effects a “complete separation” from the First Amendment.
When RFRA’s defenders are put on the spot about its departure from First Amendment cases, they feint to a position of painting RFRA as a vanilla “religious liberty” statute that is just good for everyone. There is nothing vanilla about a law where you can be surprised each time it is invoked.
Every politician in America—Republican and Democrat—needs to know that this is also untrue. There is no vanilla in its huge reach or its unpredictable intrusion into every legal sphere. This is a statute that finds its way into arenas never imagined and will continue to do so. Its negative effect on the LGBTQ community, whether in the marketplace or the workplace, is a sliver of its folly.
Facts are the best answer to the religious-liberty-is-always-good-and-so-is-RFRA mantra. God vs. the Gavel catalogues case after case in which religious entities have demanded rights that undermine the public good and that few have considered in Congress, Indiana, or any other state. Here is a short list of cases every one needs to ponder before jumping on the RFRA bandwagon. Which of these would you have predicted? These are just the tip of the iceberg.
1. Noah’s Theme Park in Kentucky is invoking RFRA to secure $18 million in tax credits and to give them the right to discriminate based on religion in hiring.
1. The Supreme Court held that the First Amendment did not accord drug counselors a constitutional right to unemployment compensation after they were fired for using an illegal drug (peyote) during a religious ceremony in Employment Div. v. Smith. The opposite result was attained under RFRA in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, which held that a religious group would likely succeed in obtaining the right to use a different illegal hallucinogen contained in hoasca tea.
2. The Church of Cannabis was the first drug-using group out of the gate to demand rights under the Indiana RFRA and is now growing quickly. In other words, with RFRA, the Indiana legislature ceded its control over marijuana and many other illegal drugs.
1. RFRA waters down deadbeat dad laws. A father, who was member of a commune, fought criminal liability (incarceration and contempt order) for failure to pay child support, on a theory they may not be the “least restrictive means” of enforcing a support order. Let that sink in: the argument is that RFRA means that a believer should not be held criminally liable for breaking the law, when civil liability is available. Hunt v. Hunt, 162 Vt. 423, 436-438, 648 A.2d 843, 853-54 (1994). In other words, RFRA would erase the criminal code for believers.
2. RFRA shields believers from explaining their practices that create conditions for child labor law violations. A fundamentalist Mormon (of the FLDS organization, which has been responsible for marrying 12-year-olds to old men and violating polygamy laws in several states and Canada) need not testify about practices in a federal child labor law case. Perez v. Paragon Contractors, Corp., No. 2:13CV00281-DS, 2014 WL 4628572, at *1, *4 (D. Utah Sept. 11, 2014).
We are supposed to be comforted about RFRA’s extreme attack on every law by its proponents’ argument that so many RFRA claims are losers. They are in effect conceding that it often wastes judicial resources. Who “wins” these losing cases? Certainly not the taxpayers, who must underwrite most of these lawsuits. That leaves only the interest groups and lawyers. True, I represent a limited number of cities and victims fighting RFRA or RLUIPA, particularly when they are used as swords against good and fair laws and communities. Yet, I would be delighted to put all of us out of business by getting them declared unconstitutional, dramatically narrowed, and/or repealed. They are just bad laws.
Here is a small sample of losing RFRA cases that never would have entered the courts but for RFRA, involving federal bankruptcy, deportation, and a criminal investigation into a polygamous sect that forces 12-year-old girls into marriages. Not one is a righteous cause worthy of the courts’ time or effort.
1. A Catholic Archdiocese in federal bankruptcy filed for the purpose of avoiding compensating hundreds of clergy sex abuse victims argues that it can commit fraud with no consequences due to RFRA.
2. Deportation is challenged on the ground that the deportee couple could not have a “qualifying relative” in the United States, because they could not have a child and would not have in vitro fertilization, because it violated their beliefs.
Fernandez v. Mukasey, 520 F.3d 965 (9th Cir. 2008).
3. Notorious polygamist Warren Jeffs, whose digusting picture kissing his 12-year-old bride was widely disseminated, argues RFRA protects him against a search of his home related to the criminal investigation. Jeffs v. State, No. 03-10-00272-CR, 2012 WL 601846 (Tex. App. Feb. 24, 2012).
Let’s apply the Indiana “fix” mentality to all of the cases mentioned above. That would entail exempting the following categories: entertainment venues and amusement parks, illegal drugs, child support, child labor laws, fraud, immigration, and criminal investigation. Or, how about doing what makes sense: stop this rush to RFRAs in the first place and start repealing the existing ones now.
The best advice I can give to any legislator facing a proposed RFRA is this: don’t let the religious lobbyists mislead and intimidate you into backing a law that makes it impossible for you to know how it will be invoked or applied in the future. Don’t buy into their fake First Amendment rhetoric or their religious liberty-is-always-good-for-us mantra. Instead, know that the constitutional framers, fresh from Europe’s deadly theocracies, knew that there is such a thing as too much religious liberty. You should, too.
If they want religious liberty for a baker who doesn’t want to bake cakes for same-sex marriage couples, offer to discuss and debate that issue in specifics. Or, take the issue of whether a pizzeria should be able to refuse to sell a slice to a gay woman because she is gay. Again, have a public debate on that issue. A RFRA is to each of these issues as a sledgehammer is to a flyswatter.
As Gov. Mike Pence learned and will continue to learn, a RFRA hangs a sword waiting to fall above each lawmaker. You just never know when it will fall next. Moreover, it is a self-inflicted wound that operates on a bi-partisan basis.
Republican Pence had to scramble when his state’s RFRA empowered businesses to discriminate against customers. That was fixed. Now he has a RFRA that empowers discrimination in employment, which when it is inevitably invoked in Indiana by an employer determined not to employ LGBTQ employees or to discriminate in a benefit plan against same-sex couples, will be laid at his feet.
On the other side of the aisle, congressional Democrats had to scramble when Hobby Lobby was able to invoke RFRA to deprive female employees of federally mandated contraception protection. It was an outcome never imagined; indeed, many on Capitol Hill erroneously believed that the federal civil rights laws would always trump RFRA and, therefore, no employer could impose on female employees a benefit plan like Hobby Lobby’s that discriminates based on gender and religion. Like Pence, they were blindsided because RFRA is both opaque and expansive.
One of my favorite Bible sayings is that “they will know you by your fruits.” Yes, they will.