by Mitch Kokai
Senior Political Analyst, John Locke Foundation
We’ve heard quite a bit about how efforts to protect religious liberty through a state version of the Religious Freedom Restoration Act amount to homophobes’ rear-guard effort to block the expansion of gay rights.
Lost in all this fury was the simple purpose of these RFRAs: They are designed to stabilize an unsteady line of judicial precedent regarding how judges should treat laws that impair the First Amendment right to the free exercise of religion. …
… In many respects, the problems underlying the RFRA are representative of the broader challenge that the growth of government poses to the liberties enshrined in the Bill of Rights. As public regulation grows increasingly pervasive, the risk that it will encroach upon individual liberty grows correspondingly greater.
States are not passing RFRAs to protect the faithful from laws that specifically target the practices of religious groups or institutions. Such statutes are few and far between, and have been dispensed with in short order by the courts under existing First Amendment jurisprudence. Rather, RFRAs seek to protect First Amendment rights from the sort of ubiquitous regulatory creep that has come to define American government in the 21st century. For example, state laws requiring autopsies might conflict with the religious beliefs of the deceased and their survivors. Local zoning regulations might prevent homeowners from displaying emblems of their faith on private property. Rules establishing dress and uniform requirements might exclude Jews who wear yarmulkes from military service. And prison regulations may bar observant Muslims from having beards. It would be wrong to suggest that government lacks a compelling interest in any of these cases, all of which have been argued before courts; to take one example, the demand that there be exceptions to military dress creates a potential disciplinary hazard for the armed forces. Rather, the injury that such measures might cause to the individual’s right of free exercise is all the more reason to require that the government show that a law’s means are narrowly tailored to compelling government ends.
The judicial standards established by RFRAs are moderate and measured; the debate provoked by the Indiana law has been anything but. …
… Neither the federal RFRA nor its state counterparts sanction discrimination. The Indiana RFRA, like the federal statute, requires that courts apply the very same standard to laws that impair free exercise as they do to laws that discriminate against racial minorities. What is more, RFRAs stand against a broad backdrop of federal and state anti-discrimination law, not least of which is the Civil Rights Act of 1964. Its Title II prohibits discrimination in public accommodation on the basis of race, color, religion, or national origin. Thus a restaurant owner may not invoke his religious beliefs in refusing service to an interracial couple. Nor, for that matter, could he refuse to cater an interracial wedding.
Same-sex weddings are a different matter, but this has less to do with the RFRAs than it does with the unsettled position of gay rights under state and federal law.