Howard Friedman offers several reasons why Indiana’s RFRA is so much more controversial than its 1993 federal counterpart. His second rationale crystalized why Indiana’s law has created such an outrage!
Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents. Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.
Dale Carpenter expressed a similar sentiment:
What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.
In my abstract for “Collective Liberty” (which just got a shot of new material), I stated the issue almost the exact same way:
Second, with respect to free exercise, we have witnesses a bold transformation of the Religious Freedom Restoration Act (“RFRA”). Introduced in Congress by Senators Kennedy and Rep. Schumer, and signed into law by President Clinton in 1993, RFRA was designed as a legislative override of Justice Scalia’s unpopular decision in Employment Division v. Smith. The law was designed as a shield to protect religious minorities, such as Native Americans who use sacramental peyote, from laws that infringe on their exercise. Fastforward two decades, and RFRA is now wielded as a sword to enforce the religious identities of corporations, that cannot be burdened by the Affordable Care Act’s contraceptives mandate. In her dissent in Burwell v. Hobby Lobby, Justice Ginsburg highlighted the divide, focusing on how the Court’s accommodation of the religious liberties of Hobby Lobby would have an impact on “thousands of women” “who do not share the corporation owners’ religious faith.” For Ginsburg, the collective needs of society for covered contraception easily trumps religious liberty. The majority, which grudgingly conceded that covering contraception was a compelling interest, viewed the calculus exactly backwards.
A similar argument could be made about Free Speech, which many progressive would also argue was hijacked by the right. Come to think of it, that is the other theme of “Collective Liberty.”
Historically, liberals tended to favor broad conceptions of individual rights, with respect to protecting unconventional and unpopular speech, minority religious groups, and the right to private association. Conservatives, in contrast, often opposed such rights to the extent they impeded the preservation of traditional social norms. But in recent years there has been a reversal, as the right has coopted the mantle of individual liberty against claims of governmental intrusion into their timehonored institutions. But for the left, a robust freedom of speech, religion, and associationno longer serving the causes of social justicecan now more easily be subordinated to the “generalized conception of the public good.”
First, with respect to free speech, the progressive preference for collective liberty is evident in the ACLU’s decision not to file a brief in McCutcheon, reflecting a divide among its members. As Floyd Abrams opined, the dissent offers a “very troubling vision of free expression” and is “deeply disquieting.” With respect to speech, modernday liberalism seems to be drifting away from protecting individual freedom, and more towards constitutionally guaranteeing equality. Conservatives seize on expanded speech rights to repel this creeping control.
This paper got even more timely than I expected. My draft is due to the Floyd Abrams conference at YLS at 4/14, so I will have something by then (one way or the other).
Update: The NY Times makes the same point:
When the federal government adopted a religious protection act in 1993,same-sex marriage was not on the horizon.
An informal coalition of liberals and conservatives endorsed the Religious Freedom Restoration Act because it seemed to protect members of vulnerable religious minorities from punishment for the exercise of their beliefs. The federal legislation was set off by a case involving Native Americans who were fired and denied unemployment benefits because they took part in ceremonies with peyote, an illegal drug.
Twenty states, including Indiana last week, have since passed their own versions of religious freedom laws.
But over time, court decisions and conservative legal initiatives started to change the meaning of those laws, according to liberal activists. The state laws were not used to protect minorities, these critics say, but to allow some religious groups to undermine the rights of women, gays and lesbians or other groups.
“The coalition broke apart over the civil rights issues,” said Eunice Rho, a lawyer for the American Civil Liberties Union. The organization, which initially supported the measures, now opposes them unless they include language ensuring that they will not be used to permit discrimination or harm.
In a January decision, the Supreme Court ruled that under the 1993 law, a Muslim man in federal prison could keep a short beard.
That is a prototypical example of what most saw as the original purpose of the act, said Katherine M. Franke, the faculty director of the Public Rights/Private Conscience Project at Columbia Law School.
Update: More from Prof. Mark DeGirolami:
Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter’s recent post: “What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.”
One might have thought, even relatively recently, that religious freedom was a “civil right.” But no longer: it is now said to be the enemy of “civil rights.” And I suppose that what is “weaponized” will depend on one’s perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state’s interest in vindicating specific sorts of dignitarian harms, that have been “weaponized.” But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.
Here’s how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I’ll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):
The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.
Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.
Update: More from Rick Garnett:
Following up on Marc’s response to Dale Carpenter’s post on the “weaponization” of RFRA: Dale expresses concern about RFRA-type laws being used as a “sword against civil rights.” It is not my impression that those of us who support RFRA-type accommodation regimes expect or want them to be used in such a way.
As I see it — and as I tried to set out in this short forthcoming paper — the conversation about how to manage the conflict between some religious-liberty claims and some equality and non-discrimination claims has to proceed from an appreciation for the facts that “religious liberty” *is* a civil right and that the enterprise of protecting civil rights includes — it has to include — care for religious liberty.
I think Rick is right that Progressives have shifted away from looking at religion (and I would argue speech) as a civil right unto itself. The goal is to achieve equality, and liberty is a secondary concern, to the extent that it gets in the way of “social justice.” This is the crystallization of Justice Breyer’s vision of “collective speech.”
Update: John McGinnis addresses the “minority” religion argument:
The New York Times distinguishes the past operation of the federal religious freedom lawby complaining that while it once protected religious minorities it currently protects conservative Christians. But conservative Christians now are a religious minority and a dwindling one at that.
Now there are other arguments against religious freedom legislation, state and federal, but social changes in the last two decades show that that complaints recently expressed about such protections are less pragmatic than ideological– less about assuring gays and lesbians access to services and more about making sure that the state can penalize minorities for acting on religious beliefs that the majority abominates.
Speaking of minority religions, the Times offers this preview of religiosity in the United States in the next 50 years.
In the United States, the spread of secularism will probably continue: Those who claim no religion will make up about a quarter of the population by 2050 — an increase from 16 percent in 2010. Christianity will have the biggest losses, with its share of the American population declining to 66 percent in 2050 from 78 percent in 2010, according to the projections in the report.
The number of Muslims in the United States will surpass that of Jews (at least those who claim “Jewish” as their religious identity) by 2035, but both groups will remain tiny portions of the American religious landscape, Conrad Hackett, the lead researcher and demographer for the Pew report, said in an interview.