Fifteen Eighty Four

Originally posted at http://hamilton-griffin.com/whose-fault-is-rfra/.

When the Supreme Court hears oral argument in the contraceptive mandate cases on Tuesday, where for-profit corporations are demanding rights under the Religious Freedom Restoration Act (RFRA), sitting on the bench will be someone who was involved in its legislative history, Justice Elena Kagan. Her attitudes toward religious liberty are insightfully addressed in Professor Griffin’s post.

The RFRA formula is showing its true, extreme colors lately. Large for-profit corporations like Hobby Lobby, with its annual revenue of $3.3 billion, are demanding “religious liberty” to coerce, if not control, their female employees’ private health decisions under the federal RFRA. And conservative Christian organizations are lobbying in the states to obtain state-level RFRAs that permit businesses to claim a religious right to reject customers, especially gays and lesbians. Whose fault is it? The religious lobbyists, to be sure. Ironically, though, a sitting Justice and civil rights groups delivered it.

RFRA’s Background

When RFRA was first proposed in 1990, the ACLU, People for the American Way, and Americans United for Church and State jumped on board the religious groups’ bandwagon, without any apparent awareness that they were undermining their own core values. The name is so gloriously benign they let themselves be drawn into a statute that grants religious actors far more rights against the law than ever before in U.S. history. That’s right: the “restoration” in the title is misleading.

After RFRA’s initial enactment in 1993, its operation in practice made civil rights groups wary. Why? Because it was invoked by landlords to deny housing to unmarried couples in violation of the fair housing laws, and there was a rational fear it would also be deployed to deny housing to homosexuals, same-sex couples, and unmarried mothers.

Then the Supreme Court held RFRA unconstitutional in 1997 as a violation of the separation of powers, Art. V (the amendment procedures), and states’ rights, in Boerne v. Flores, which I successfully litigated on behalf of Boerne, Texas. According to the Court, RFRA “appears . . . to attempt a substantive change in constitutional protections.” The Court reasoned that the federal government certainly could not create new constitutional rights against the federal government out of whole cloth, and then concluded that it couldn’t do so against the states either. Thus, in 1997, RFRA was a dead letter.

The religious groups were unhappy and demanded Congress enact another RFRA, this time named the Religious Liberty Protection Act (RLPA), which would have applied the same extreme standard to state and local laws and, in Sec. 7, put in place a RFRA to apply solely to federal law. It was a brazen thing to do in light of the Supreme Court’s ruling against RFRA, which contained no invitation to re-enact it in any form. But never let it be said that modern-day religious lobbyists view Supreme Court decisions as much of a barrier if their God demands something else.

Children’s advocates, cities, mayors, attorneys general, prison administrators, and civil rights groups, who had experienced the negative effects of RFRA, poured into Congress. The former groups dampened the enthusiasm for RLPA, but the civil rights groups brought the process to a halt by demanding a carve-out for the civil rights laws, which would keep believers from using RFRA to trump the anti-discrimination laws, that forbid discrimination on the basis of race, gender, sexual orientation, marital status, alienage, and disability. The irrational enthusiasm for RLPA evaporated.

Kagan’s Role

This history is apparent from the May 1999 emails of current Supreme Court Justice Elena Kagan during the Clinton Administration. At the time, she was the Deputy Director of the Domestic Policy Council, and in an email to Ron Klain (Chief of Staff to Vice President Gore) she described herself as the “biggest fan of RFRA (now RLPA)” but warned Gore not to take any position at that time.

Why? Because it would have given believers ammunition to overcome the civil rights laws. Civil rights groups demanded a “civil rights carve-out” or no law at all. Kagan told Klain that Gore would have a “gay/lesbian firestorm on your hands” if he supported RLPA then.

The much-hailed alliance between religious and civil rights groups behind RFRA initially had disintegrated, leading to a stand-off. Civil rights groups wanted the carve-out, religious groups were adamantly opposed to any exception. If Gore backed the civil rights groups’ version, Kagan told Klain, he would have a “religious groups firestorm.” She said to just wait, because “we had a meeting with the religious groups yesterday and are having a meeting with the gay groups Monday to see whether we can work out some kind of rapprochement.”

The religious groups were not willing to compromise for civil rights, according to Kagan, because one carve-out would “open the political floodgates.” All those objecting would want their own carve-out. Whatever compromise was proposed by Kagan, we may never know, because RLPA did not survive, as I explain below. She was nominated in June 1999 by Pres. Clinton for a seat on the D.C. Circuit, but the nomination lapsed before hearings were held, and so she eventually joined the Harvard Law School faculty.

On July 15, 1999, the religious groups obtained passage of RLPA with no civil rights carve-out in the House, by the not-nearly-unanimous vote of 306-118, and then it died in the Senate. That should have been it for extreme religious liberty by the federal government. But the Clinton Administration and religious organizations did not give up.

The 2000 Compromise

The next year, a “rapprochement” appears to have been reached: a new RFRA applicable to all federal law (including federal civil rights law) and a Religious Land Use and Institutionalized Persons Act (RLUIPA), which would impose extreme religious liberty on land use laws and prisons in the states. In other words, the civil rights groups defeated the parts of RLPA that would have affected state and local civil rights laws, but they let slide through a pure RFRA and the new RLUIPA. The ACLU even drafted RLUIPA (in part to ensure that it would not affect the fair housing laws).

Why Did the ACLU Let a Federal RFRA with No Civil Rights Carve-Out Happen?

Why did the ACLU and the civil rights groups agree to a RFRA with no carve-out for civil rights laws? I am not sure. There are three possibilities. First, they thought that believers would lose RFRA cases involving the federal civil rights laws, which was unduly optimistic in light of the mixed results in the RFRA fair housing cases up to that point, and the now-pending contraception cases, where women’s rights to avoid discrimination on gender and religion have been trampled by courts like the Tenth Circuit en banc’s decision in favor of Hobby Lobby. A case in point is the 2007 Department of Justice memo arguing that that RFRA should trump the federal law against discrimination on religion in federal government contracts.

Second, perhaps the civil rights groups agreed to a political compromise with their previous allies for RFRA. They were able to carve back RLPA so as to preserve local and state civil rights laws, and as the price they supported for the religious groups a federal RFRA with no carve-out and RLUIPA. That would be the sell-out option.

Third, perhaps the ACLU thought that it would be able to get a civil rights carve-out at some point, but the law was passed before they knew it. I was working with children’s groups, cities, prison administrators, and others in 2000. We were told in late July that the opposition’s concerns would be heard at hearings in the fall. Yet, as soon as Congress went into summer recess on the afternoon of July 27, 2000, RLUIPA and RFRA were passed by the indefensible process of “unanimous consent” in both Houses, with the opposing members not even in town. Maybe the ACLU didn’t know any more than the opponents that it would be covertly passed in this way.

Whether the ACLU was naïve, sold out, or hoodwinked, there should have been no “rapprochement.” Had the discussion ended once the Senate pulled the plug on RLPA, there would be no federal RFRA. Obviously, the discussion continued on, given the ACLU’s role in drafting RLUIPA. Had ACLU stood its ground, Hobby Lobby would have no federal statute to raise as a club against the contraceptive mandate. If Congress had at least enacted a civil rights carve-out, Hobby Lobby’s female employees’ rights under Title VII would be stronger.

After their profound error in supporting RFRA in the first place became evident in the early fair housing cases, it is hard to believe the civil rights groups blinked. But somehow they did.

I would further wager, had there been no new federal RFRA there would be few state RFRAs, and, therefore, no springboard for the demands for a Jim Crow-like right to exclude customers based on sexual orientation or, in Arizona, any status. Read state RFRA sponsors’ statements—they all say that they are “simply” bringing to the state what the federal government already has. The civil rights groups, now feverishly playing whack-a-mole across the country and at the Court, are responsible. Justice Kagan was the “biggest fan” of RFRA before its negative potential was clear. It will be interesting to see what she thinks on Tuesday.