Indiana RFRA Redux: NFL Threatens Georgia with losing Super Bowl Bid over RFRA Provision Already in Effect in Four Circuits

March 20th, 2016

According to CBS News, the NFL has threatened to pass over Atlanta for its Super Bowl bids in 2019 and 2010 in light of its proposed RFRA. Here is the operative language of the bill:

(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this Code section.

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is:

(1) In furtherance of a compelling governmental interest; and

(2) The least restrictive means of achieving that compelling governmental interest.

(c) A person whose religious exercise has been burdened in violation of this chapter may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against government.

Sections (a) and (b) are virtually identical to the federal RFRA. The only new wrinkle is section (c), which allows RFRA to be raised as a defense in a proceeding. That is, if a plaintiff brings some sort of discrimination action against a defendant, the defendant could assert that the enforcement of the discrimination law itself violates RFRA.

Much like with the outrage over Indiana’s RFRA in March 2015, the NFL is likely objecting to the “defense” provision. I’m sure the NFL’s counsel is aware that this construction of the federal RFRA is currently the prevailing law in the Second, Eight, Ninth, and D.C. Circuit Court of Appeals–the so-called “defense Circuits.” That would rule out Super Bowl LII in Minnesota in 2018 as well. Plus, I’m sure the NFL is aware that Texas–the site of Super Bowl LI in my home town of Houston, has no LGBT discrimination ordinance on the books. Also, I’m sure the NFL’s lawyers are aware that the Holder Justice Department took a similar position in its briefing in the Wheaton College litigation.

In August of 2012, the United States Government stated that Wheaton College, if sued by an employee for failing to provide insurance that covered contraceptives, “in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates” RFRA. Yes, you read that right. The Obama Administration held that a corporation, albeit a non-profit one, could defend itself against a private claim from an employee by asserting that the Obamacare’s contraception mandate imposes a “substantial burden” on its free exercise of religion. That is to say, the most controversial aspect of the new Indiana religious-freedom law was blessed by Attorney General Eric Holder’s Justice Department

I should also stress a point I made last year, but can’t be made often enough:

RFRA does not provide immunity to discrimination claims. It only allows a defendant to raise a defense, which a finder of fact must consider, as in any other defense that can be raised under Title VII or the Americans with Disabilities Act. Yes, believe it or not, under employment-discrimination laws, the courts have long recognized that there are legitimate defenses to treating people differently based on protected statuses. In the Supreme Court’s decision in Hosanna-Tabor, mentioned earlier, the Court unanimously found that an employee terminated because of a disability could not sue the church, because of the Free Exercise clause. This may not seem fair or equitable, but this 9–0 decision by the Supreme Court was a recognition of clearly established principles of how religious beliefs can, in rare cases, provide a defense against discrimination claims. University of Virginia law professor Douglas Laycock, an expert in free-exercise law, stated the issue well: “The hysteria over this law is so unjustified. It’s not about discriminating against gays in general or across the board. It’s about not being involved in a ceremony that you believe is inherently religious.” Like the First Amendment, RFRA is not a blank check for bigotry.

From an economics perspective, the residents of the ATL should be relieved that they are no longer in the running for the Super Bowl, as cities always lose money on these boondoggles. (I am dreading when the Super Bowl comes to Houston in January 2017).