Applying the Religious Freedom Restoration Act in Different Scenarios

October 24, 2014

How could a law protecting religious liberty that passed a Democratic-controlled Congress (97-2 vote in the Senate) and was signed by President Clinton in 1993 be so controversial today? How could this Religious Freedom Restoration Act and similar state laws be compared to Jim Crow and racial segregation?

For its first twenty years, the Religious Freedom Restoration Act (RFRA) faced little to no controversy. But in the lead up and aftermath of the recent Hobby Lobby case at the U.S. Supreme Court, and fueled by debates at the state level surrounding state versions of the Religious Freedom Restoration Act, opponents have begun to place religious liberty in scare quotes and the seemingly bipartisan protection has come under fire.

Conservative Christians have been called hypocrites and bigots for defending religious liberty and RFRA. In his April 2014 National Review cover story detailing the Religious Freedom Restoration Act, David French quotes the late Rep. Stephen Solarz (D., N.Y.) discussing RFRA: “‘It is perhaps not too hyperbolic to suggest that in the history of the republic, there has rarely been a bill which more closely approximates motherhood and apply pie. . . . . In fact, I know, at least so far, of no one who opposes the legislation.’”

So how exactly do the now “controversial” RFRA and state-law counterparts work? It’s quite simple really. If a person claims a government law, regulation, or action burdens their religious viewpoint, the government must show that the law or regulation furthers a compelling governmental interest (e.g., ending race- or sex-based discrimination) AND that the law is the least restrictive means to achieve that interest. The latter condition simply requires that if the government can achieve that interest in a way that does not burden religious belief and practice, it must do so.

Nothing more; nothing less. It’s not a get-out-of-jail free card. It’s not an allowance to discriminate. It’s not even a way to make up obscure beliefs or pluck Scriptures out-of-context to get out of paying your taxes.

French continues in his National Review article to outline the extreme arguments now being levied against RFRA, including,

“There is of course also the notion that RFRA’s compelling-government-interest requirement is somehow the legal equivalent of an “I win” button that will allow businesses to exempt themselves from regulations at will, with no democratic recourse. […] This misconstrues the text of RFRA and the legal history of the compelling-interest test. RFRA does not mandate any outcomes; it merely prescribes a balancing test—with the government bearing the responsibility of demonstrating a compelling interest when it substantially burdens religious liberty. History has shown that sex- and race-discrimination laws, minimum-wage laws, child-labor laws, and the Social Security system all survived and thrived under the very legal regime [some critics including Justice Kagan] hinted was so threatening. Indeed, even the most cursory review of Supreme Court authority under the compelling-government-interest test shows that litigants have often faced long odds (too long) when confronting regulatory regimes.”

But if you’ve halfway been paying attention to these debates, you know the misrepresentations about the law do not end the criticism levied against conservative Christians. We are also called hypocrites and told we only fight for religious liberty when the cases involve fellow conservative Christians. Furthermore, we are told that we never stand up against bogus claims of religious liberty.
As it is so often with these debates, the facts show a completely different story. Facts are indeed stubborn things.

Look no further than two cases currently working their way through the judicial system. One of them involves a Muslim prisoner taking his religious liberty claim to the Supreme Court of the United States and the other involves a TN woman challenging her conviction of child neglect by challenging TN’s Spiritual Treatment Exemption Act.

The same firm that represented the Green Family in the Hobby Lobby case – The Becket Fund for Religious Liberty – is representing Gregory H. Holt, also known as Abdul Maalik Muhammad, in Holt v. Hobbs before the United States Supreme Court. The case debating whether prison bureaucrats may arbitrarily ban religious practices will be argued on October 7th. As The New York Times stated in its outline of the case, “As in the Hobby Lobby case, [the Supreme Court] will consider whether the challenged government regulation placed a substantial burden on religious practices. If it did, the government must show that it had a compelling reason for the regulation and no better way to achieve it.” The interests on each side are clear, although the balancing test the Court will undertake less so.

Can the prison ban Mr. Holt from growing a half-inch beard as part of his devout religious practice? The state prison officials claim the governmental interest of prison safety and lean on a wealth of jurisprudence encouraging high levels of deference to prison administrators to govern how they see fit, holding that many rights are forfeited at the prison gates.

But The Becket Fund, an organization the secular left wishes could be penned down as catering only to conservative Christianity, argues otherwise. After all, they point out, 43 states’ prison systems would allow Mr. Muhammad’s beard, with 41 states allowing even longer beards. Furthermore, beards for medical reasons are allowed while beards for religious reasons are banned. Finally, all 535 members of Congress voted in favor of RLUIPA, the federal civil rights law that protects religious freedom in prisons.

As Dr. Russell Moore argued in an interview discussing why Christians must be at the forefront of defending religious liberty for people of all religions, “You have some people who haven’t thought through that what our Baptist forebears were saying is right — that religious liberty is an image-of-God issue; it’s not a who-has-the-most-votes issue. That means we’re the people who ought to be saying the loudest: ‘We don’t want the mayor and the city council to say that a mosque can’t be in our town.’ The mayor and the city council that can say that is a mayor and a city council … that has too much power. The government doesn’t decide that. We’ve got to be the people who are saying that.”

Yet, this does not mean a carte blanche defense of all religious liberty claims. Christians must speak out against claims of religious liberty against the common good. One such example is the case of Jacqueline Crank recently argued before the Tennessee Supreme Court.

Crank argued that the Supreme Court should overturn her child neglect conviction from her 15-year-old daughter’s death due to Ewing’s Sarcoma in 2002. When her daughter was diagnosed with this painful form of bone cancer, Crank chose to rely on prayer and her Christian faith, and refused to seek medical treatment for her daughter. Although the lower court sentenced Crank to unsupervised probation, she has continued her fight through the state courts arguing that faith-healing should be legal for everyone.

Crank’s claims of religious liberty for faith healing do not pass constitutional muster. The claims that her religious practice has been burdened are outweighed by the government’s very compelling governmental interest to stop child neglect and abuse, ensuring children do not unduly suffer. To prove that the state of Tennessee is using the least restrictive means, the state may even point to the Tennessee’s Spiritual Treatment Exemption Act which allows faith-healing but requires a showing of accredited legitimacy by a practitioner of a recognized church or religious denomination, a requirement Ms. Crank does not meet.

Cases like Holt v. Hobbs and State of Tennessee v. Crank clearly reveal the value of balancing religious liberty and state interests found in RFRA and similar state laws. Such tests require courts to protect citizens’ constitutional rights to free exercise, while simultaneously ensuring that such protections do not unduly hinder the common good.

And in order to support and defend such laws that guard what have been universally-recognized rights for over 200 years, we as Christians MUST stand up for religious liberty for all people of faith while standing against bogus claims that seek to undo righteous and moral laws protecting minorities, children, and the least of these.

In doing so, lovingly and consistently, we prove even our harshest critics wrong. We are not using RFRA and the free-exercise clause of the Constitution as a means to oppress and silence those who disagree with us, but instead, as the Framers and our ancestors envisioned, we seek to be the true defenders of a pluralistic and free society.

Joseph Williams
Joseph Williams is a constitutional lawyer and ERLC Associate Research Fellow.