For decades, right-wing groups have tried to rewrite our First Amendment to provide exemptions from common-sense laws because such laws apparently conflict with Judeo-Christian values. Now, an entity that isn’t Christian is possibly gifting those groups a new poster child.
In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), giving the religious certain privileges that atheists, freethinkers, agnostics, and other secularists cannot have. Twenty years later, the U.S. Supreme Court ruled that RFRA allows Hobby Lobby to openly violate an Obamacare provision requiring its employer-paid health insurance to cover contraceptives.
Usually, Christians claim that RFRA permits them to avoid complying with neutral and generally applicable laws. There is no known boundary as to the type of federal law that RFRA can be used to earn an exemption. Now, a New Jersey case may test RFRA’s application to federal labor trafficking laws, wage-and-hour laws, anti-discrimination laws and racketeering charges — but the twist is that it involves a non-Christian religious formation.
Bochasanwasi Akshar Purushottam Swaminarayan Sanstha (BAPS) is a Hindu sect famous for building extravagant temples. This includes vast marble floors, intricate statues of deities and large estates. BAPS temples are located throughout the United States: Chicago, Houston, Milwaukee, Atlanta and Los Angeles, to name a few. Its newest temple — the second largest Hindu temple in the world — is in Robbinsville, N.J., costing approximately $96 million to build.
In May 2021, the FBI swept the Robbinsville temple for evidence of labor trafficking and forced labor. The day before, a class action lawsuit was filed against the sect alleging violations of the Fair Labor Standards Act (FLSA), the Trafficking Victims Protection Act (TVPA), New Jersey labor law and state contract law. In an amended complaint, more defendants from other BAPS temples were added, citing further allegations of labor and trafficking violations. The plaintiff class affixed two more federal claims: racketeering charges and caste-based religious discrimination claims.
The lawsuit alleges that BAPS instructed Indian-national artisans to fill out R-1 visas, which are typically used by religious ministers volunteering in the United States. The artisans instead arrived to work on the Robbinsville temple. The lawsuit alleges that the workers were paid about $1.20 per hour, had their passports confiscated, lived in trailers on temple grounds — but couldn’t leave — and had their meal schedules determined by BAPS staff.
According to the lawsuit, the artisans worked 12 to 13 hour days. The premises, before the building was complete, had 50 cameras to ensure that the artisans complied with the group’s rules. Temple staff would fine artisans for work code infractions, constituting certain percentages of their salary. For instance, the lead plaintiff was fined 25 percent of his monthly salary for not wearing a helmet on one day. One worker even died during the temple’s construction. Two years later (but not alleged in the lawsuit) 33 women were found living in uninhabitable conditions on temple grounds. One person was treated for stroke and carbon monoxide poisoning.
The Trafficking Victims Protection Act was designed to prevent slavery and human trafficking. The Fair Labor Standards Act was passed to prevent unfair labor practices by employers. Federal racketeering charges are designed to thwart conspiracies to commit some crime or tort. Anti-discrimination laws have everything to do with ensuring fair workplaces and a robust labor market. These laws have nothing to do with religion and everything to do with workers’ rights and organized wrongs. However, with a religious institution accused of violating them all, the Religious Freedom Restoration Act enters the mix as a possible defense. The logic goes that applying these laws to religious “volunteerism” substantially burdens an institution’s religious exercise. Thus, the government must have a compelling interest and a narrowly tailored policy to proceed against institutions such as BAPS, this argument goes. That is a difficult standard for any government to meet.
If unable to meet that scrutiny, the government would be unable to prosecute religious entities engaged in trafficking; plaintiffs would be unable to even sue after being trafficked. It would be deeply undesirable for any court to hold that religious entities can traffick people with impunity, simply because of their religious character. Given the close resemblance of the allegations in the complaint against the BAPS sect to the institution of slavery, this argument is shocking. Allowing organizations to escape any of the above laws because the illegal conduct is part of their religious exercise undermines the rule of law.
To be clear, BAPS may very well be not guilty (or not liable) for what they have been accused of. But, in using the Religious Freedom Restoration Act as a defense, religious institutions do not deny the alleged conduct. They actually argue that, even if the alleged conduct is true, RFRA allows them to do it.
That cannot stand in a society where law is to mean something. And as Justice John Paul Stevens famously noted in his city of Boerne v. Flores concurrence: “[RFRA] [] provide[s] the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.”
FFRF takes issue with any religion that would seek to exempt itself from generally applicable, neutral laws. No faith or religious institution should get an exemption from any general law. This is an extraordinary, under-the-radar case pinning our worst preferential treatment law (RFRA) against one of our best anti-trafficking statutes (the Trafficking Victims Protection Act).
The good news so far: The case has been stayed for almost three years pending the federal government’s criminal investigation, as is required by the Trafficking Victims Protection Act. So, this RFRA defense has not been asserted quite yet. But with the Supreme Court’s composition and its willingness to freely give religious individuals and groups a pass — trafficking, labor and racketeering laws might be the next frontier for the Religious Freedom Restoration Act.
