One of the most difficult challenges in explaining the Religious Freedom Restoration Act (RFRA) to the public lies in its generic title. The public reads “religious freedom” and thinks, “check,” and moves on. Its breadth just slides by. The fact that a RFRA can cover every law is virtually unthinkable in part because not a single one of us can name even a significant portion of all the categories of laws there are, let alone each law by itself.
But, and here it is: a RFRA applies to all laws in cases where the government is involved (except for the Mississippi RFRA, which applies even in cases between private parties). The bottom line is that one must watch RFRA play out before its contours begin to awe.
With my books, God vs. the Gavel: Religion and the Rule of Law and God vs. the Gavel: The Perils of Extreme Religious Liberty, I have tried to enumerate those arenas where RFRA could have a large, and troubling impact, with chapters on children, marriage, houses of worship in residential neighborhoods, schools, prisons and the military, and civil rights. But RFRA offers so many other possibilities! It is the father of all unintended consequences.
The federal RFRA was prompted by Employment Div. v. Smith, which involved a free exercise claim by Native American believers to use peyote, but by the time RFRA was enacted they had obtained religious exemptions and didn’t need it. No one thought of discussing other religious needs for illegal drugs. But, as it turned out, peyote was just the beginning.
In the first RFRA case at the Supreme Court after it was held unconstitutional in 1997 in Boerne v. Flores, the Court held in O Centro Espirita Beneficente Unaio de Vegetal v. Gonzales that the group likely has a right under RFRA to use the illegal drug in hoasca tea. Again, this was a small group and a marginally popular drug, so it did not raise a lot of eyebrows (mistakenly in my view as I discuss here).
Now, thanks to the endlessly entertaining experience of Indiana with RFRA, we have the Church of Cannabis invoking RFRA to obtain the right to use marijuana during religious services. The odds are quite good they should win, because the Court in O Centro ruled that the federal government had already exempted peyote for the Native American, that the active ingredient in hoasca tea was a Schedule 1 drug, and, therefore, the federal government would have to extend its exemption from Schedule 1 drugs from peyote to hoasca. Marijuana is a Schedule 1 drug as well, so as against the federal government, the church should win. Given that the state RFRA theoretically was designed after the original RFRA (though that doesn’t really happen anymore as the push for ever more extreme protection left behind the original model in 2000 and never stopped), O Centro is likely to cast a large shadow over Indiana’s drug laws. When marijuana is legal, the churches of cocaine and heroin cannot be far behind.
The Religious War Over Women’s Access to Reproductive Health Care
Then we had the surprising revelation that RFRA applies to for-profit companies such as a billion-dollar company, Hobby Lobby, and that employers can selectively remove medical treatment and prescriptions from their plans based on gender and faith in Burwell v. Hobby Lobby.
Enter the Satanic Temple, gamely arguing that its believers believe in medical science based on, well, science and, therefore, the abortion restrictions, which typically have little to do with science, can’t be applied to them. That’s right, we now have warring religions on whether women can have access to contraception or abortion, and the law governing women’s access to health care will be determined by religious believers, one by one.
The interesting historical point here is that the Catholic bishops originally opposed RFRA for fear someone would pull a move like the Satanic Temple. They were then persuaded to back off. Might regret that now.
There are other intriguing categories to add, e.g., theme parks; polygamy and child labor law violations; prisoners’ rights to have facial hair long enough to hide contraband and, let’s not forget, supposed rights of government employees not to hand over marriage licenses.
There is no way to predict the next surprise except that as long as the RFRAs reign, there will be many. Under the Constitution, RFRA cannot limit its scope to only certain privileged viewpoints, but rather, if it is going to exist, it must apply to all believers from all faiths, including an individual’s idiosyncratic beliefs. Therefore, believers with opposite, competing beliefs can carve up and supplement laws – all at the same time. Good luck finding the neutral policy for the greater good of all once RFRA has had its way.
The good news is that legislators are as accountable for RFRA as they are for every other law they enact and so the blame for RFRA’s delegation of lawmaking to unelected judges and for its destruction of the rule of law lies squarely on legislative shoulders. They, too, can and will experience the RFRA surprise that has shaken Indiana’s Governor Mike Pence. Holding them to account and eliminating or amending the RFRAs is the only route to restoring fair dealing and the rule of law. That is, if that happens before it is too late to re-capture the neutral rule of law that has made the United States a beacon of peaceful religious coexistence.