Finally. Finally, this country is waking up to the problems with allowing personal religious belief to trump the law.
It seemed like FFRF was the only major organization actively arguing that the Religious Freedom Restoration Act is unconstitutional. During the Hobby Lobby case FFRF had a few friends, SNAP, CHILD, etc. join us in arguing that RFRA is unconstitutional, but we were a small crew. The nation’s foremost expert on RFRA, Marci Hamilton, who successfully overturned a huge portion of that law in front of the Supreme Court back in 1997, wrote FFRF’s brief. Like cream, it rose to the top of the 88 briefs filed in the case.
SCOTUSblog, the Peabody Award-winning Supreme Court blog, singled out FFRF’s brief for extended coverage, calling it a “bold challenge.” The Washington Post reported on the “outpouring of amicus briefs, mostly favoring the companies, with advice for what the court should do. But one stands out from the others because of its blunt assessment about what the justices should do with the RFRA: declare it unconstitutional.”
The New York Times editorial mentioned the argument favorably as well. Bill Donohue was predictably incensed, and you know you’re doing something right when the Catholic League’s mouthpiece starts driveling. Sadly, though not unsurprisingly, the majority failed to pay attention to our brief.
To us, Indiana’s law was not a surprise. Neither are the state RFRAs cropping up everywhere these days. Arkansas, North Carolina, Georgia and Nevada are next. Our good friend Prof. Hamilton keeps track of state RFRAs here: http://rfraperils.com/
We’ve been fighting against these codifications of religious privilege for years. We’re happy to get some company. Other enlightened individuals are joining FFRF’s once-lonely voice. Apple CEO Tim Cook and CEO of Salesforce.com Marc Benioff are two converts, with more companies, athletes, and celebrities speaking out every minute.
We welcome them to this fight. We need the help. I’ve written extensively about the problems with RFRA elsewhere, in particular the Hobby Lobby decision. But still there are people who think RFRA will not, could not be used to discriminate. If this is you, you’re not paying attention. Tony Perkins, of the Family Research Council was fairly explicit last month when he wrote:
In at least 10 states, conservatives are fighting back with a string of Religious Freedom Restoration Acts (RFRAs). Although each state’s may vary, the bottom line is that they give men and women of all faiths a powerful tool to stop the government from walking all over their beliefs on issues like marriage and sexuality. If Washington State had a RFRA, for example, Baronnelle Stutzman would actually have legal grounds for beating back the government’s attack on her store.
Baronnelle Stutzman, owner of Arlene’s Flowers, infamously refused to provide flowers for a gay wedding. The religious right wants these laws passed specifically so that they can defend their discrimination in court.
Or simply do what GLAAD did and look at who wrote the law.
These laws are so bad, and so terrifying, because they elevate religious beliefs above the law. Religious beliefs that are not supported by any evidence, but held with unshakable certainty. Under RFRAs, those beliefs trump our laws while reasoned, logical, evidence-based beliefs do not.
Religious sects that use drugs in their worship services are already sprouting up in Indiana, trying to take advantage of the new law. No doubt Gov. Pence sees this as the law of unintended consequences flexing its muscles, but this too was predictable.
In fact, the first RFRA—the federal version—was foisted on this nation because two gents, fond of peyote and practitioners of a Native American religion in which that drug is prominently featured, were fired. They were unable to get unemployment benefits because they were terminated under state law for misconduct—for using drugs (they were actually drug counselors). The Supreme Court, in Employment Division v. Smith, upheld the denial of benefits because the state law was not “prohibiting the exercise of religion.” The religious burden was “merely the incidental effect of a generally applicable and otherwise valid provision.” The law was not about burdening religion, but about preserving the worker’s compensation fund.
To sum up, the court quoted Reynolds v. U.S. (1879), the decision that overturned Mormons’ claim that polygamy prohibitions violated their religion. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
RFRA did exactly what the court warned about in Smith and Reynolds: It elevated one individual’s religious belief above the law. And as the court said, government can “exist only in name under such circumstances.”
If the citizens of this nation have any sense, they’ll join FFRF, Apple, Salesforce.com, Angie’s List, the NBA, the NCAA, NAscar, Wal-mart, and the rest of RFRAs opponents and condemn this experiment in religious privilege. It’s time to repeal RFRA. “Let’s have no hate in my state — or in these United States,” as FFRF Co-President Annie Laurie Gaylor recently wrote.