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Here’s why your state may be expanding religious freedom protections this year

Published: Friday, Jan. 16 2015 7:00 a.m. MST

The rush to enforce same-sex marriage across the country may trigger state legislative efforts to enact local versions of the federal Religious Freedom Restoration Act. Supporters say cultural changes make this necessary; opponents fear boycotts.

VladimirCetinski, Getty Images/iStockphoto

After a year of court rulings that strengthened and weakened religious freedom protections for individuals and businesses, debate over those protections is expected to shift to state capitols in 2015.

Lawmakers in Georgia, Michigan and Ohio have readied state-level versions of the 1993 federal Religious Freedom Restoration Act, or RFRA. Other states may also join their ranks.

"We anticipate an uptick in state legislation this year regarding state RFRAs," said Jonathan Griffin, a policy specialist for the National Conference of State Legislatures in Denver. "There's been greater attention paid to the topic this year in light of the (Supreme Court's) Hobby Lobby decision, and that would be my guess as to why."

Along with the Hobby Lobby ruling, which expanded religious freedom protections to business owners, state laws and federal court decisions legalizing same-sex marriage and cultural clashes over a variety of faith practices are also propelling a RFRA resurgence.

Another solution some legislatures may explore is expanding public accommodation, or nondiscrimination, laws to include religious protections. But regardless of which avenue lawmakers pursue, the debate will likely be contentious. Supporters of such bills say their intentions are to enhance the conscience rights of faithful believers, while opponents assert the bills would be a cover for those who don't want to acquiesce to gay rights.

"I think it's going to be resolved by politics, by brute force," said Christopher C. Lund, an associate professor of law at Wayne State University Law School in Detroit. "We will inevitably have public accommodation laws protecting gays, lesbians and hopefully transgender people. (Legislators will) hammer through a solution. It looks like some states might give exemptions (to religious objectors), but most probably will not."

RFRA resurgence

The need for any legislation beyond the First Amendment to protect individual conscience rights was largely moot before the 1990s. For decades, legal precedent had put the burden on government to prove its interests outweighed those of religious observers.

But in April 1990, the high court changed course in a case that involved government workers who were fired for using peyote, an illegal drug, in a religious ceremony. The high court declared that laws that generally apply to everyone, like banning illegal drug use, do not violate the Constitution's free exercise of religion clause.

Congress quickly responded by nearly unanimously passing the 1993 federal Religious Freedom Restoration Act. The law requires that the "government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability," except in cases of a "compelling governmental interest."

While Congress said RFRA applied to the states, the Supreme Court decided otherwise, ruling in 1997 that RFRA applied only to federal statutes. The high court's decision set off a state-level stampede to reinforce religious freedom. Today, 19 states have RFRAs on their books.

The Hobby Lobby case put RFRA to the test. The firm's owners argued daily fines of $1.3 million for not complying with a federal contraception mandate under the Affordable Care Act would be a "substantial burden" under the religious freedom law. The government's attorneys contended such fines were justified because of the general public benefits the health care law provides.

In a majority opinion handed down in June, Justice Samuel A. Alito Jr. said RFRA applied to how individuals operated businesses as well as how people worshipped at their religious institutions.

"Congress provided protection for people like the (Hobby Lobby owners) by employing a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons,’ ” he wrote. "But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings."

Nicholas Miller, an attorney and director of the International Religious Liberty Institute at Andrews University in Berrien Springs, Michigan, who was involved in the first wave of state RFRAs nearly 20 years ago, said the Hobby Lobby ruling alerted states that an RFRA could be the answer to anticipated religious freedom challenges over same-sex marriage or other disputes.

"Hobby Lobby came out the way it did because of a federal RFRA," Miller said. "State RFRAs are an appropriate response to what has become a rather one-sided view of rights where gay rights appear to trump" the rights of others.

Others, however, say the Hobby Lobby ruling's negative consequences could cast a shadow over potential state measures.

Jennifer C. Pizer, a senior counsel with the Lambda Legal Foundation, a gay rights law firm in Los Angeles, viewed Hobby Lobby not as a religious freedom issue but about "women's health needs being treated unequally to men's health needs. … When people oppose (state RFRA) bills, there's opposition at step one because of the way Hobby Lobby changed the meaning" of equal treatment under the law.

Same-sex marriage

While the Hobby Lobby ruling has presented an opportunity to beef up conscience protections at the state level, another motive for lawmakers considering religious freedom protections has the been the sweeping legalization of same-sex marriage either by judicial fiat, state statute or the ballot box in the past several years.

Many states that legalized gay marriage by statute carved out limited protections for religious objectors. But recent federal court rulings overturning state bans on same-sex marriage don't address conscience rights, creating uncertainty for those who won't recognize a legal gay marriage for religious reasons.

Even in states like New York, the negotiated conscience protections in the same-sex marriage law didn't go far enough for many religious objectors.

"All of the existing protections go to the boundaries of religious institutions," said Tim Schultz, president of the 1st Amendment Partnership in Washington, D.C. "None go to values-based businesses. A pure, for-profit wedding chapel, or a wedding photographer, or a landowner would not be protected by the (same-sex marriage) laws in New York. Many legislators believe they should be protected, and that's what they'll be talking about" in state legislatures this year.

But those lawmakers are going to be up against a formidable opposition that sees state RFRAs or exemptions to public accommodation bills as licenses to discriminate against gays, lesbians and transgendered people.

"This is a familiar pattern that whenever there has been civil rights advanced there have been some who tried to undermine it by carving out licenses to discriminate," said Evan Wolfson, a gay-rights advocate who heads Freedom to Marry, based in New York City. He said RFRA-type bills are "intended to allow and encourage discrimination, in businesses, in the workplace and in a way that does nothing to protect religious liberty, but does so in a way to insult people because of who they are."

The opposition is broader than gay marriage advocates, however. The business community in some states has characterized efforts to expand religious protections as damaging to economic development.

In February, Arizona Gov. Jan Brewer, a Republican, vetoed SB1062, a measure that supporters said would strengthen religious freedom protections for citizens, but was sharply criticized by gay rights supporters and business leaders. Brewer called the measure "broadly worded and could result in unintended and negative consequences."

A 2014 effort to pass a Georgia RFRA also drew harsh criticism from Atlanta-based Delta Airlines, which stated such "proposals would cause significant harm to many people and will result in job losses."

Lund, who signed letters with other religious liberty scholars in support of the failed 2014 Arizona and Georgia bills to protect religious conscience, said tensions between religious conscience and civil rights protections will continue.

"If you enforce these public accommodation laws, there are people who will be unable to follow their religious conscience," he said, referring to nondiscrimation laws protecting gays, lesbians and transgendered people in areas of housing, labor and commerce.

On the other hand, he said, "the vast majority of RFRA cases have nothing to do with any of these issues. Religious minorities depend on state RFRAs. These bills are being debated and conceived of as being about florists, photographers and landlords, (but) a lot of (other) merits get overlooked."

Prospects for passage

Georgia and Arizona weren't the only states where religious freedom protection legislation fell flat last year. Related measures in Michigan, Georgia, Idaho, Kansas, North Carolina, Ohio, Oklahoma, South Dakota, Tennessee and West Virginia either died in committee, failed to pass both legislative houses, or were withdrawn by sponsors.

And the prospects for success this year are uncertain.

The debate has already heated up again in Georgia, where Republican Rep. Sam Teasley pre-filed his state RFRA legislation in December. The proposal has drawn criticism from Competitive Georgia, which describes itself as "a coalition of Georgians united against discrimination and the harmful effect it has on our economy," but which lists no officers or directors on its website.

Spokesman Trey Childress, a former top official for two Georgia governors, characterized the measure as a solution looking for a problem.

"We've done fine without this law for 20 years, which is now introduced on the heels of (new) protections for (sexual) minorities," he said, adding that it will "open the door for discrimination in the workplace."

But Teasley said the nation's cultural climate has changed in the past two decades and a state RFRA would not target any specific group but apply to the conscience rights of everyone.

Teasley said his bill's language "has been in both federal codes and in state codes for 15 years, and I suspect (opponents) can't point to a single time this language has been used to discriminate against the gay and lesbian community."

Instead, Teasley said the measure is designed to protect religious minorities. He noted the concerns some observant Jews have over the practice in some jurisdictions in the state of automatic, routine autopsies that violate tenets of orthodox Judaism regarding the desecration of the body.

He also mentioned a middle school student whose request to form a religiously themed after-class club was denied by a principal until legal action was threatened. The student, Teasley wrote, would have greater protections with a state RFRA.

Michigan state GOP Sen. Tom Casperson, who actively supported the 2014 state RFRA and may reintroduce the measure this year, also denied any discriminatory intent. In a bipartisan letter promoting the bill, Casperson wrote that the bill would "protect the conscience rights of faith-based adoption agencies" that wouldn't place children with same-sex couples for religious reasons.

Although state-level RFRAs failed in 10 states last year, Mississippi passed its own measure, signed by Gov. Phil Bryant. While critics called the bill "anti-gay," Bryant said the measure simply protects "the individual religious freedom of Mississippians of all faiths from government interference." An Associated Press report noted the measure's language was toned down from an earlier bill that mirrored Arizona's failed approach.

While Lund is not optimistic about the prospects of RFRAs or religious exemptions in accommodation bills passing statehouses this year, Greg Scott, a vice president for the Alliance Defending Freedom, which supports enactment of state RFRA measures, said lawmakers can't back down because of political pressure.

"Legislators are duty-bound to protect the promise of freedom our country was founded to fulfill," he said. "When those freedoms are threatened, lawmakers must act to protect them. Failing to protect freedom is a dereliction of a legislator’s most important duty."

Email: mkellner@deseretnews.com

Twitter: @Mark_Kellner

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