Religious freedom laws had their origin in Oregon

Apr 8, 2015
Domestic News

John Cole political cartoon

An Oregon case led to the federal religious protection law, but the Indiana and Arkansas state laws are controversial because they are much broader.

It would have been a lot easier for supporters of the controversial Indiana and Arkansas laws on protection of religious freedom to claim they weren't about allowing discrimination if so many supporters had not already said that's exactly what the laws were about.

It would have been easier for defenders to claim the laws merely mirrored the federal Religious Freedom Restoration Act if the laws weren't different in language, scope and impact than the federal law.

The federal RFRA has its origins in Oregon.

Prior to 1990, U.S. Supreme Court decisions established a high standard for justifying the imposition of a substantial burden on the rights of someone to freely exercise their religion. "Strict scrutiny" was required. The government had to show it had a "compelling interest" and the burden imposed couldn't be achieved by less restrictive measures.

That changed in a 1990 ruling when the court upheld an Oregon Employment Division decision to deny unemployment benefits to two Native American rehab center employees fired because they had ingested peyote in a religious ritual.

In an opinion written by Justice Anton Scalia, ironically now the darling of conservative court watchers, the court lowered the standard. The higher strict-scrutiny threshold still applied to laws that intentionally discriminate against religion, the court said, but not to laws where the burden is an incidental effect of a generally applicable law.

Scalia said applying the higher standard to a law that might infringe on someone's religious beliefs would amount to "a system in which each conscience is a law unto itself."

Both ends of the political spectrum condemned the decision as insensitive to religion. In 1993, with near unanimity, Congress passed and President Bill Clinton signed the RFRA, restoring the higher compelling interest requirement. to instances where the government was forcing a person to do, or not do, something.

Then in 1997 the court ruled the RFRA applied only to the federal government and many states began passing their own RFRA laws, many of which did mirror the federal version.

Indiana's did not. It expanded the application of the law beyond government action to individuals and for-profit businesses. It enabled the assertion of religious beliefs as a defense in judicial or administrative proceeding disputes between private parties regardless of whether the government is party to the proceedings. And the claim could be asserted for legal action to prevent a "likely" burden on religious belief even before any burden is actually imposed.

There was a swift and strong outcry against these laws as well. And to the surprise of supporters, it was joined and led by major corporations condemning them as contrary to their values of tolerance and inclusion.

The Republican Legislature in Indiana had to "fix" the law by adding language saying the bill can't be used to justify denial of service to anyone on the basis of sexual orientation, race, religion or disability. It no longer does what many supporters wanted it to do.

In Arkansas, the Republican legislature revised its law to mirror the federal RFRA.

Still, many private businesses, primarily those associated with providing wedding services, say they should be freely allowed to discriminate against gay couples because providing cakes, flowers or food for same-sex weddings would somehow violate their religious beliefs.

This raises a curious question of reasoning on the narrow application of one's religious beliefs and some rather arbitrary distinctions. An adulterer on a third marriage can get a cake, but not a gay couple?

In Georgia, where a law similar to Indiana's is stalled, a florist told CNN she'd serve an adulterer but not a gay person because, "It's a different kind of sin."

The major Republican candidates for president have all stated their support for the original Indiana law. And supporters of the original Indiana and Arkansas (and Georgia) versions of an RFRA continue to decry Democrats as hypocritical because Bill Clinton signed the federal law.

They treat the different laws as if they were the same. But the RFRA state laws they've lined up behind aren't identical to the one Clinton signed.

Instead of mirroring a law that protected religion against discrimination by government, they tried to turn the RFRA into a law designed to allow religion to be used as government-sanctioned protection for discrimination.

 

Ron Eachus

Statesman Journal

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