Using RFRA to abuse liberty

by Ken Burrows

Former Supreme Court justice clerk and noted church-state scholar Marci A. Hamilton is a leading spokesperson on the dangers of overinterpreting the meaning of “religious freedom.”

In the wake of the Burwell v. Hobby Lobby and Obergefell v. Hodges Supreme Court decisions on contraceptive coverage and same-sex marriage, there has been a proliferation of efforts to invoke “religious freedom” as justification to be exempt from laws citizens must generally follow. Hamilton (along with many others) sees some of these exemptions as extreme, such as allowing discrimination against gays and lesbians, withholding health services, or practicing other faith-based bias, claiming a “religious freedom” right to do so.

These claims are being made largely under federal and/or state versions of the Religious Freedom Restoration Act (RFRA), the law on which the Burwell decision was based. RFRA says government may not “substantially burden” a person’s exercise of religion unless it furthers a “compelling governmental interest” and is done with the “least restrictive means” possible. Hamilton contends Burwell’s overly broad interpretation of RFRA has spawned a raft of religious exemption claims that fail to consider the harm these exemptions would bring to others.

Sometimes referred to as “extreme liberty,” such exemptions also breach the wall separating church and state, preventing the state from defending the civil rights of citizens against religious assault. Prior to Burwell, RFRA was not generally seen as allowing discrimination based on religion. The Secular Coalition for America reported earlier this year that legislators at a hearing on RFRA emphasized the law was meant “to protect all, not favor some at others’ expense” and was intended to be a shield, not a sword. Justice Ruth Bader Ginsburg addressed this in her Burwell dissent by noting: “No prior decision under RFRA allows a religion-based exemption when the accommodation would be harmful to others.”

In an amicus brief submitted for Burwell by the Freedom from Religion Foundation (FFRF), the organization argued that RFRA acts as a “super-statute” with potential to trump every U.S. law. “RFRA elevates religious beliefs above the rights of citizens,” the Foundation argued. When FFRF criticized the Burwell ruling in a New York Times ad, even the conservative Wall Street Journal gave them credit for noting that Burwell was based not on the Constitution but on RFRA and for drawing a “logical conclusion” that Congress should repeal RFRA.

Marci Hamilton, who authored the 2014 book God vs. the Gavel: The Perils of Extreme Religious Liberty, agrees. She says we should return to classic pre-RFRA thinking, which is that if a law is neutral and applies to everyone equally, “religious freedom” does not automatically exempt one from it. Then, if and when there is a request for a religious exemption, one of the key questions to ask is who will be harmed by it. It should not just be assumed the exemption is justified or will be benign.

Founder Thomas Jefferson would concur. In his Virginia Statute for Religious Freedom he said using religion to withhold another individual’s rights “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” Or consider the caution of James Madison, chief draftsman of the Constitution, who observed: “Liberty may be endangered by the abuse of liberty.”

The extreme interpretations of RFRA are proving him right.

By Ken Burrows

Published November 25, 2015 with quotation below

“Our civil rights have no dependence on our religious opinions.”

                  - - - Thomas Jefferson