State Religious Freedom Restoration Acts

  20 States had existing RFRA Laws prior to their 2015 legislative session^[1]

  Sixteen states had RFRA legislation proposed during the 2015 legislative season. Only two, Indiana and Arkansas passed.^[2][3]

Some states have RFRA laws and LGBT anti-discrimination ordinances^[4][5]

The Religious Freedom Restoration Act (RFRA) is a federal law that was passed almost unanimously^[6][7] by the U.S. Congress in 1993 and signed into law by President Bill Clinton.^[8][9] The law mandates that religious liberty of individuals can only be limited by the "least restrictive means of furthering a compelling government interest".^[10] Originally, the federal law was intended to apply to federal, state, and local governments. In 1997, the U.S. Supreme Court in City of Boerne v. Flores held that the Religious Freedom Restoration Act only applies to the federal government but not states and other local municipalities within them. As a result, 21 states have passed their own RFRAs that apply to their individual state and local governments.

Pre Hobby Lobby

The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA), is a 1993 United States federal law that "ensures that interests in religious freedom are protected."^[11] The bill was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy (D-MA) the same day. A unanimous U.S. House and a nearly unanimous U.S. Senate—three senators voted against passage^[6]—passed the bill, and President Bill Clinton signed it into law.

The federal RFRA was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress's enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores and other related RFRA issues, twenty-one individual states have passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.^[12]

State RFRA laws require the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the federal Religious Freedom Restoration Act, which usually serves as a model for state RFRAs, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;^[13] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”^[14]

The federal RFRA provided an exception if two conditions are both met. First, the burden must be necessary for the "furtherance of a compelling government interest".^[14] Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.^[15] The second condition is that the rule must be the least restrictive way in which to further the government interest.

Post Hobby Lobby

In 2014, the United States Supreme Court handed down a landmark decision in Burwell v. Hobby Lobby Stores, Inc. recognizing a for-profit corporation's claim of religious belief.^[3] Nineteen members of Congress who signed the original RFRA stated in a submission to the Supreme Court that they "could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA".^[16] The United States Government stated a similar position in a brief for the case submitted before the U.S. Supreme Court handed down its decision in Burwell v. Hobby Lobby, writing that "Congress could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA. ... The test Congress reinstated through RFRA ... extended free-exercise rights only to individuals and to religious, non-profit organizations. No Supreme Court precedent had extended free-exercise rights to secular, for-profit corporations."^[17]

Following the Burwell v. Hobby Lobby decision, many states have proposed expanding state RFRA laws to include for-profit corporations,^[18][19] including in Arizona where SB 1062 passed by in Arizona but vetoed by Jan Brewer in 2014.^[20][21] Indiana SB 101 defines a "person" as "a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association" or another entity driven by religious belief that can sue and be sued, "regardless of whether the entity is organized and operated for profit or nonprofit purposes".^[4] Indiana Democrats proposed an amendment that would not permit businesses to discriminate and the amendment was voted down.^[22]

An RFRA bill in Georgia has stalled, with constituents expressing concern to Georgia lawmakers about the financial impacts of such a bill.^[23][24][25] Stacey Evans proposed an amendment to change references of "persons" to "individuals", which would have eliminated closely held for-profit corporations from the proposed law, but the amendment was rejected because it would not give protections to closely held corporations to practice religious freedoms granted by the Supreme Court in the Hobby Lobby case.^[23]

Many believe that the existence of a state-level RFRA bill in Washington could have advantaged Barronelle Stutzman, who was involved in one lawsuit based on her having refused to provide flowers for a gay wedding.^{[26][27][28][29]}

Politifact reports that "Conservatives in Indiana and elsewhere see the Religious Freedom Restoration Act as a vehicle for fighting back against the legalization of same-sex marriage."^[30] Despite being of intense interest to religious groups, state RFRAs have never been successfully used to defend discrimination against gays—and have rarely been used at all.^[31] The New York Times noted in March 2015 that state RFRAs became so controversial is due to their timing, context and substance following the Hobby Lobby decision.^[32]

Several law professors from Indiana stated that State Religious Freedom Restoration Acts like "Indiana SB 101" are in conflict with the U.S. Supreme Court's Free Exercise Clause jurisprudence under that "neither the government nor the law may accommodate religious belief by lifting burdens on religious actors if doing so shifts those burdens to third parties. [...] The Supreme Court has consistently held that the government may not accommodate religious belief by lifting burdens on religious actors if that means shifting meaningful burdens to third parties. This principle protects against the possibility that the government could impose the beliefs of some citizens on other citizens, thereby taking sides in religious disputes among private parties. Avoiding that kind of official bias on questions as charged as religious ones is a core norm of the First Amendment."^[33] The Supreme Court for example stated in Estate of Thornton v. Caldor, Inc. (1985): "The First Amendment ... gives no one the right to insist that, in pursuit of their own interests others must conform their conduct to his own religious necessities.’" Relying on that statement they point that the U.S. Constitution allows special exemptions for religious actors, but only when they don't work to impose costs on others. Insisting on "the constitutional importance of avoiding burdenshifting to third parties when considering accommodations for religion" they point out the case of United States v. Lee (1982).^[33] Here the court stated:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.^[34]

Effects of RFRAs on state court cases

Mandates courts use the following when considering religious liberty cases:

1. Strict scrutiny
2. Religious liberty can only be limited for a compelling government interest
3. If religious liberty is to be limited, it must be done in the least restrictive manner possible

States with RFRAs

There are 21 states that have a version of the Religious Freedom Restoration Act enacted by their legislature:

If states with RFRA-like provisions that have been provided by state court decisions—rather than via legislation—are included, the list also contains:^[48][49]

Some states have had legislation withdrawn or vetoed. Arizona's bill SB 1062 was vetoed by Governor Jan Brewer. Bills 1161 and 1171 have been vetoed by a Colorado committee.^[50][51][52]

References