Ever since Indiana Gov. Mike Pence (R) signed into law his state’s version of the “Religious Freedom Restoration Act” (RFRA) last week, progressives have been up in arms. LGBT advocates, major businesses, gamers, and entire Christian denominations have threatened to boycott the state if the law isn’t repealed or amended, and Connecticut Gov. Dan Malloy (D) announced on Monday that he is banning any travel to Indiana paid for with state funds. Pence has insisted the law is only intended to protect “religious liberty,” but his detractors maintain that such claims are just a thinly-veiled legal justification for discriminating against LGBT people — something supporters of the law have openly admitted is part of the impetus for its creation.
The Left’s furor over Indiana’s bill is understandable, as it is relatively unique among state-level RFRAs in its ability to be wielded as a weapon of prejudice. But lost in the back-and-forth is how the sudden conservative embrace of such laws directly contradicts America’s historic understanding of religious freedom as an inherently inclusive — and, arguably, intrinsically progressive — value, one primarily used to protect minority groups from discrimination, not the other way around.
The Progressive Roots Of Religious Freedom
As most students of U.S. history can attest, early American colonies were densely populated with spiritual refugees fleeing religious persecution rampant in various sections of Europe during the 16th and 17th-century. This included the famous Pilgrims who left England to avoid discrimination, but also lesser-known groups such as the French Huguenots, who endured massacres at the hands of Catholics in France, and Scotch-Irish Presbyterians, who had a long history of clashing with England’s established church. Yet despite this deep communal aversion to abuse, Puritans (among others) wasted little time swinging the club of oppression at other faith groups when they arrived in the “New World,” quickly establishing state religions, banning rival faiths, and publicly hanging anyone who worshipped differently. In response, political leaders in Rhode Island, New Jersey, Connecticut, and Pennsylvania set up colonies that guaranteed religious freedom to all, transforming cities into welcoming hubs for persecuted religious groups such as Quakers, Catholics, Jews, and others.
Why do we have a free exercise clause? Because some people could not freely exercise their religion in some parts of the country.
Rob Boston, Director of Communications at Americans United for Separation of Church and State, told ThinkProgress that this complex religious/political context — where some colonists enjoyed religious freedom and others were actively persecuted for their faith — informed the Founding Fathers as they penned three sections of the U.S. Constitution and the First Amendment: the rejection of any state religion (the “establishment clause”), the prohibition of any religious “test” for elected officials (the “no religious test clause”), and, of course, the right to freely exercise one’s religion (the “free exercise clause”).
“Why do we have a free exercise clause? Because some people could not freely exercise their religion in some parts of the country,” Boston said. “They couldn’t even open their own church. They couldn’t meet in their own homes for prayer. That’s what the purpose of the clause was; to protect the right of people to meet for worship, prayer, read the religious books of their choosing… all that kind of thing.”
Boston reasoned that the Founders’ overall intent was to avoid replicating the horrors wrought by state religions in Europe and early America by balancing the right to worship alongside other equally valuable rights. Thus, this progressive impulse — the need for a functional, virtuous democracy to protect minority groups while also not unfairly burdening other citizens — guided the U.S. Supreme Court as it addressed a litany of religious liberty complaints over the next two centuries. Time and time again, the court sided with small religious minorities in various free exercise cases, guaranteeing Amish families the right to educate their children after 8th grade, Jehovah’s Witnesses the right to proselytize, and Santería churches the right to conduct animal sacrifices.
Boston also noted, however, that most of these cases did not afford the faithful unmitigated power to exclude others except in explicitly religious contexts. Rather, they only protected a believer’s right to practice religion in ways that wouldn’t unduly harm their neighbors. In fact, when the Court court did see religion impinging on the rights of “third party” citizens, they often stepped in: Boston pointed to Prince v. Massachusetts, a 1944 Supreme Court decision where a Jehovah’s Witness woman instructed a nine-year girl to preach on the streets, distribute religious literature, and collect donations. The woman claimed her right to religious freedom allowed her to violate local child labor laws, which stipulated that girls under 18 were not permitted to sell literature in public places. But the Supreme Court disagreed, ruling that the government could end the girl’s proselytizing because it had the right to protect children from child labor, regardless of her guardian’s religious motivation.
This Ain’t Your Grandfather’s “Religious Liberty”
Despite this historic, balanced, and quintessentially American understanding of religious liberty as a protective shield for minority groups, Boston and others say that a recent string of court decisions — endorsed by right-wing think tanks and advocacy groups — have radically reoriented our country’s legal perception of the First Amendment. In last year’s Supreme Court decision Burwell v. Hobby Lobby, justices allowed the company’s evangelical Christian owners to opt-out of the Affordable Care Act’s contraception mandate simply by citing their faith — a move that reinterpreted how the court engages with the federal RFRA and narrowed the way judges approach religious liberty claims. In addition to infuriating many progressives by giving corporations some of the same rights as religious institutions, the case created a legal framework that effectively forces judges to focus on the complaint of whoever is suing for religious reasons — not necessarily the wider implications of their religious beliefs. In other words, this new understanding of religious liberty makes it harder for courts to deliver rulings that account for how one religious group’s actions might infringe on the rights of others.
“We are overlooking the fact that the Supreme Court’s current understanding of religious freedom does not include the idea of harm to innocent third parties,” Boston said. “And they need to bring that concept back in.”
I don’t think anyone foresaw that the Hobby Lobby would happen, but [the decision] opens up the door for flipping RFRA on its head.
Carolyn Davis, Policy Analyst for the Faith and Progressive Policy Initiative at the Center for American Progress, explained that the ruling exploits an omission in the federal RFRA, which passed in 1993. She contends that the legislation, which enjoyed broad bipartisan support at the time, was meant to correct a controversial 1990 Supreme Court decision that failed to protect the religious rights of two Native Americans who were denied unemployment benefits for smoking peyote during a religious ceremony. Davis said that lawmakers, confident the court would continue to approach questions of religious liberty as it had for over two hundred years, didn’t foresee how the law would be used.
“It really was in the interest of protecting minority religious practice, but there’s nothing in there about third party harm,” Davis told ThinkProgress. “I don’t think anyone foresaw that the Hobby Lobby would happen, but [the decision] opens up the door for flipping RFRA on its head.”
Nineteen lawmakers who voted for the federal RFRA have since rescinded their support for the law, but courts are already citing Hobby Lobby’s interpretation of RFRA while handing down decisions that challenge the rights of others — sometimes in ways that blatantly contradict the spirit of previous rulings. Whereas the court sided with children’s rights in the Prince v. Massachusetts case, for instance, a Utah federal district court ruled last September that a member of a fundamentalist Mormon sect did not have to testify in a case charging his group with violating child labor laws, because Hobby Lobby’s interpretation of RFRA protected his religious belief in “secrecy.” In addition, conservative groups across the country are now furiously attempting to pass — and, in Indiana’s case, actually signing into law — state versions of RFRA that unapologetically allow businesses to use religious claims as a means to discriminate against LGBT people, primarily because anti-LGBT lawmakers now believe the courts will side with them if the laws are ever challenged.
Meanwhile, in a deeply ironic twist, the Hobby Lobby decision is now being used to pit religious groups against each other. In 2012, a district court decided that the Northern Arapaho, a Native American tribe, couldn’t conduct their religious ritual of killing bald eagles on land they share with the Eastern Shoshone tribe, because the Eastern Shoshone believe eagles are sacred. Instead, a judge ruled that the Northern Arapaho could perform “eagle take” off the reservation, justifying the compromise by arguing that the government has a “compelling interest in fostering and protecting the [both] federally-recognized [tribes’] culture and religion.” But earlier this month a Wyoming District Court reversed the decision, saying that Hobby Lobby allows the Northern Arapaho to kill eagles on the shared land because the Supreme Court ruling prevents the government from appealing to “broad” concerns when addressing religious liberty complaints — including, it would seem, the spiritual beliefs of others.
This sort of quagmire is precisely what Supreme Court Justice Ruth Bader Ginsburg warned against in her dissenting opinion of the Hobby Lobby case. Citing court precedent, she expressed deep concern that the court’s decision, more than any previous, positions judges in the Constitutionally awkward position of “approving some religious claims while deeming others unworthy of accommodation [which] could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’”
Technically, Congress could pass a law amending the federal RFRA to include language protecting third parties in religious liberty cases. But while that’s a feasible way to fix state RFRA’s like Indiana’s, Boston and Davis both expressed doubt that such a bill could make it through America’s hopelessly gridlocked national legislature anytime soon. In the meantime, the unnerving combination of court decisions and state-level RFRAs continues to chip away at the progressive ideal that has shored up religious freedom in the United States almost since its founding: the charge to include — not exclude — minority groups, and fight back against those who would use religion as a weapon to discriminate.
“It’s remarkable to me that we are now at a point where people are arguing that an attempt by a same-sex couple to get legally married violates someone else’s religious freedom,” Boston said. “That in no way keeps a person from going down the street to church, from reading the Bible, or praying to God in whatever way they want.”