Religious Freedom Laws: Overview

Introduction

Freedom of religion is enshrined in the First Amendment of the US Constitution as part of the Bill of Rights. Some adherents of several mainstream religions in the United States, particularly Christianity, view certain social practices, such as birth control and homosexuality, as sinful. As the social acceptance of such practices grew quickly in the early twenty-first century, some religious individuals began to feel that their beliefs were under attack and that they were being forced to accept things they morally opposed. With the nationwide legalization of gay marriage in the 2015 Supreme Court ruling on Obergefell v. Hodges, many conservative states and citizens felt their freedom of religion was being directly compromised by federal mandate.

Religious Freedom Restoration Acts (RFRAs) are the offspring of the 1993 federal Religious Freedom Restoration Act, which was passed to strengthen religious freedom protections—particularly for American Indian religions. In 1997, however, the US Supreme Court ruled that the act's applicability was restricted to the federal level, leaving state legislatures to begin passing their own RFRAs. While many people support these RFRAs as a legal means to protect individuals' and businesses' basic right to exist and operate according to their deeply held religious convictions, others fear that the laws leave too much room for discrimination in the name of religion. This concern was heightened by the RFRA introduced in Indiana in 2015 that many felt, because of its ambiguous language, would enable businesses to discriminate against gay people. Such concerns and debates regarding religious freedom laws and discrimination remained into the 2020s, particularly as the period marked an increase in both the introduction and passage of state anti-LGBTQ legislation.

Understanding the Discussion

Jurisprudence: The theory of law.

LGBTQ: An acronym representing the lesbian, gay, bisexual, transgender, and queer or questioning community.

Religious Freedom Restoration Act (RFRA): A federal law passed in 1993 stating, "Government shall not substantially burden a person's exercise of religion"; the term RFRA has come to describe many similar state-level bills proposed since.

Strict scrutiny: The strongest standard of judicial review used by US courts when evaluating the relative weight of constitutional rights versus government interests. To pass strict scrutiny, a law must (1) reflect a compelling governmental interest, (2) be narrowly tailored to achieve that interest, and (3) be the least restrictive means for achieving that interest.

History

In 1620, the Pilgrims landed in New England in search of freedom from the religious persecution they had endured in England, and they were followed a decade later by the Puritans for the very same reason. Freedom of religion was ultimately made a constitutional right in the United States, included in the First Amendment alongside freedom of speech and freedom of the press; these rights were added to the US Constitution in 1791 along with the rest of the Bill of Rights. While conflicts between established, new, and controversial religions still inevitably erupted in subsequent centuries, the principle of protecting the freedom to live by one's religious convictions remained an American ideal.

In 1990, the Supreme Court case Employment Division, Department of Human Resources of Oregon v. Smith began a new era of religious freedom law. In this case, two men were suing their employer for unemployment benefits after having been fired from their jobs as drug rehab counselors for their use of peyote, a psychoactive cactus consumed as part of some American Indian religious ceremonies. The court held that the employer was justified in denying benefits to the terminated employees, with Justice Antonin Scalia arguing that a religious exemption in this case would open the floodgates for "exemptions from civic obligations of almost every conceivable kind." The decision was unpopular on both sides of the political aisle—it was felt to be a violation of religious freedom.

Three years later, in 1993, President Bill Clinton signed the Religious Freedom Restoration Act (RFRA) into law with nearly unanimous bipartisan support. The 1993 RFRA was designed with minority religious groups and their protection in mind. The law stated that the US government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." The bill applied a doctrine from a previous case known as the Sherbert test, which set a standard of "strict scrutiny" for any case where the government would be infringing on an individual's freedom of religious exercise; this is the strongest possible form of judicial review and requires a "compelling interest" for interfering with such a right.

In 1997, however, the Supreme Court case City of Boerne v. Flores saw the court rule that the RFRA only applies to cases where the federal government is directly involved, not to individual states or their legislatures. States then began passing their own versions of the RFRA, generally referred to as RFRAs or religious freedom laws, to ensure similar religious protections at the state level. These were passed with little fanfare until several events in the 2010s changed the legal and cultural landscape in the United States. First, in 2010, President Barack Obama passed the Affordable Care Act (ACA, also known colloquially as "Obamacare")—a statute of which requires that employers provide female employees access to birth control at no cost via insurance. This caused friction between the federal law and businesses run by conservative religious individuals, who felt providing contraception to their employees would violate the religious principles by which they ran their companies. Furthermore, contraception had already been a topic of massive legal and cultural debate throughout the United States for many years.

Conflict between the ACA and conservative-run businesses reached a peak in 2014 with the Supreme Court case Burwell v. Hobby Lobby Stores, Inc., in which the family that ran Hobby Lobby challenged the ACA's mandate to provide contraception on the grounds of religious freedom. The court sided with Hobby Lobby, setting the precedent that for-profit corporations also qualify for protection under the federal RFRA. The next year, another topic that has drawn intense resistance from conservative religious groups, marriage between individuals of the same sex, was brought before the court in the case Obergefell v. Hodges. In this instance, the court ruled that all states must constitutionally recognize marriage between two individuals of the same sex. Many conservative religious groups oppose marriages between individuals of the same sex as sinful and illegitimate. The fierce debate over contraception and marriage, coupled with the changes to jurisprudence surrounding the federal RFRA in the years since its passage, would set the stage for a heightened debate about religious freedom laws in the mid-2010s.

Religious Freedom Laws Today

In the wake of the Hobby Lobby decision, many states sought to expand their RFRA laws to grant protection to for-profit corporations. At the same time, Obergefell prompted legal cases around the country when individuals and businesses refused service to LGBTQ customers, bringing state RFRAs into the forefront of a long-running civil rights debate. Seventeen states proposed new or altered religious freedom laws in 2015 alone, according to the National Conference of State Legislatures; however, only those in Indiana and Arkansas passed, both amid intense controversy and threats of boycott from major companies such as Apple and Walmart.

The Indiana law sparked an especially large amount of protest from supporters of LGBTQ rights, who claimed that the law differed from the federal and most other state RFRAs with vague language designed to enable businesses to discriminate against members of the LGBTQ community. Approximately one week after the bill's passage, Indiana governor Mike Pence signed revisions to the law that provided new language explicitly protecting sexual orientation and gender identity. Similarly, only months after Mississippi passed an early 2016 religious freedom law that specifically protected businesses and religious groups from legal prosecution for refusing service to the LGBTQ community, a US district court judge struck down the law as "state-sanctioned discrimination." Upon appeal into late 2017, though, the law was able to take effect.

Another major legal development on the issue of religious freedom came in 2023, when the Supreme Court ruled that the owner of a graphic design business could constitutionally refuse to create a wedding website for individuals of the same sex getting married despite her state's anti-discrimination law. According to the majority opinion, the plaintiff, who opposed providing services to these individuals based on religious grounds, could decide to do so under her right to free speech. By mid-2024, with the states of West Virginia, Utah, Idaho, and Iowa passing new religious freedom laws within months of one another beginning in late 2023, the total number of states with such laws was estimated to have reached at least half.

Liberal and progressive groups such as the American Civil Liberties Union (ACLU), alongside left-leaning publications such as Vox and Slate, have accused conservative lawmakers of using religious freedom laws as an excuse to provide legal protection for discrimination against women and LGBTQ individuals. Conservative groups such as the American Heritage Foundation and media such as Fox News or the libertarian web magazine Reason instead have argued that new and strengthened state RFRAs are a necessity to protect the core freedoms granted in the US Constitution.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

Bibliography

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