Religious Freedom Claims in Private Litigation

Controversy erupted last week over the new Indiana Religious Freedom Restoration Act (or RFRA) and a bill in Arkansas that, as Marci Hamilton explained here on Verdict, would go even further. Critics charged that the laws would license discrimination against LGBT persons by individuals and businesses claiming that serving them violated their religious conscience. In rapid response to the backlash, Indiana amended its law and Arkansas produced a substitute bill that the governor signed. The new state laws appear to be more modest, providing a right to religious exceptions that mirrors the federal RFRA.

But the charges that were leveled against the earlier versions of the Indiana law and the Arkansas bill remain relevant for other purposes—including how courts should resolve ambiguities in the federal RFRA and other state RFRAs.

Before they were superseded, the controversial Indiana and Arkansas measures drew criticism based on two particulars. First, they expressly allowed religious claims by for-profit businesses. Second, express statutory language authorized their invocation in private litigation, even when neither the state nor any governmental entity is a party.

Those were indeed noteworthy features of the superseded Indiana and Arkansas measures, but only because the controversial features were express. The federal RFRA contains no express language protecting for-profit businesses, but last year in the Hobby Lobby case the Supreme Court found that such protection was implicit, even for a corporation. Other state courts may interpret their state RFRAs in the same way.

Nor would they be obviously wrong to do so. As Justice Alito explained in his Hobby Lobby majority opinion, there are at least some circumstances in which for-profit businesses can legitimately assert religious claims. He cited a 1961 case involving a kosher market. On average, there may be less reason to grant religious exemptions from general laws in a business setting than in a personal one, but there can be strong claims for religious exemptions even in the realm of the market.

What about the objection that religious freedom claims should not be available in purely private litigation? Here too, the pre-amendment Indiana law and the failed Arkansas bill were unusual mostly in what they said expressly.

The New Mexico RFRA expressly applies only to religious burdens imposed by “a government agency,” so that state’s supreme court understandably held it inapplicable in private litigation in the highly publicized Elane Photography case. But other state RFRAs and the federal RFRA do not clearly state whether they apply in private litigation. Accordingly, some state courts interpret their generally worded RFRAs to apply in private litigation, while the issue appears to be open under the federal RFRA.

Should courts interpret a general RFRA to apply in private litigation if the statute is silent on the matter? That turns out to be a quite complicated question.

State Action and Private Litigation

To see why, we must distinguish between a simple-minded objection to applying general RFRAs in private litigation and two more subtle objections.

The simple-minded objection rests on a confusion about the so-called state action doctrine. With the exception of the Thirteenth Amendment’s ban on slavery, the federal Constitution only grants people rights against the government. State constitutions generally follow the same pattern. If a law forbids you to publish an op-ed criticizing the government, the law violates your right to freedom of speech. By contrast, if the editor of a privately owned newspaper rejects your op-ed because she disagrees with it or thinks it is poorly written, you have suffered no violation of your free speech rights. Accordingly, when someone alleges that her constitutional rights are violated, she must show that the government violated her rights.

RFRAs are statutes, however, and statutes often provide private parties with rights that are enforceable against other private parties. For example, a patent is a statutory grant of the exclusive right to produce a product, enforceable in court against anyone who infringes the patent.

More directly to the present point, federal, state, and local anti-discrimination laws grant private parties rights against other private parties. Although a widget-making company that refuses to hire Mormons does not violate the Constitution, it does violate Title VII of the Civil Rights Act of 1964, and an individual Mormon denied a job under the company’s illegal policy can sue to enforce his or her statutory rights. Thus, there would be nothing inherently illogical about a state law that extended religious rights to private parties and rendered them enforceable in purely private litigation.

Nonetheless, RFRAs are styled as “Restoration Acts,” and what they aim to “restore” is the constitutional right to free exercise of religion that was weakened by the U.S. Supreme Court in its 1990 peyote decision. Because a RFRA restores a constitutional right that only applies against the government, it is natural to assume that a RFRA should only be available in litigation against the government.

Yet that assumption may be mistaken. Constitutional rights that only protect people against government action can nonetheless routinely be invoked in private litigation. A few examples illustrate the point.

Reverend Jerry Falwell sued Hustler Magazine for intentional infliction of emotional distress after the latter published a lewd depiction of Falwell. In the lower courts, Hustler unsuccessfully argued that state tort liability should be unavailable for what was obviously a joke. The magazine won a unanimous decision in the Supreme Court on the ground that the First Amendment protects jokes. Even though no governmental entity was a party to the case, Hustler could invoke the First Amendment because the government was present in the case: the common-law tort of intentional infliction of emotional distress created the liability that the First Amendment limited.

Other examples abound. In Orr v. Orr, the Supreme Court ruled that an Alabama statute permitting ex-wives but not ex-husbands to obtain alimony payments violated the Equal Protection Clause. Only private parties were involved in the case but there was no doubt that the constitutional argument was available because, as in Hustler v. Falwell, the government stood in the background as the source of the unconstitutional obligation.

Can religious freedom claims arise in private litigation that does not involve a religious claimant seeking a right to discriminate? It does not commonly happen but it is certainly possible, as a hypothetical example illustrates.

Many RFRA claims involve disputes between churches that wish to expand and local governments that forbid them from doing so, either through historic preservation laws or zoning laws. Suppose that instead of requiring approval from a government board, a local ordinance provides that any substantial expansion of an existing building requires consent from surrounding neighbors. Now suppose that a church that wishes to expand cannot obtain such consent from one or more neighbors. If the state RFRA would allow a claim against a zoning board, there is no obvious reason why it should not also allow a claim against the objecting neighbor. Even in the case of private litigation between the church and the neighbor, there appears to be government action: the local ordinance that grants the neighbor the veto power over the church expansion.

Accordingly, one might be tempted to conclude that absent language inconsistent with the invocation of a RFRA in private litigation—as in the New Mexico law—courts generally ought to treat a RFRA as applicable to private litigation. But now we come to the more subtle objections.

State Action in RFRA Cases

First, even though the simple-minded state action objection fails, there is a better state action objection. This better objection takes note of how a RFRA functions differently from nearly every other rights-conferring legal rule.

When Hustler invoked the freedom of the press against Falwell, it objected that the Virginia tort rule was defective in permitting a public figure to prevail on a claim of intentional infliction of emotional distress based on a subjective standard that afforded insufficient protection for free speech. When Mr. Orr resisted his alimony obligation, he complained that the Alabama statute favoring women over men denied him the equal protection of the laws. In these and many other situations, the party invoking a rights provision in private litigation argues that some legal rule or standard violates his, her, or its rights.

By contrast, a RFRA claim does not challenge any rule or standard. The whole point of a RFRA is that a rights-neutral law may substantially burden someone’s ability to exercise his or her religion in particular circumstances; if so, RFRA authorizes an exception unless the application of the neutral law is narrowly tailored to advance a compelling government interest.

Once we understand that granting a RFRA-based exception to a general rule or standard does not challenge that rule or standard, we can also see that the presence of the state in private litigation under RFRA is of a relatively trivial sort: The state is present only in the sense that a court will enforce or not enforce the private parties’ rights and duties. But with a couple of exceptions that are generally regarded as idiosyncratic, case law does not regard judicial enforcement of private rights under generally valid rules and standards as satisfying the state action requirement.

Thus, faced with a RFRA that does not expressly resolve the private litigation question, courts might legitimately conclude that the legislature that enacted the RFRA did not mean to disregard the longstanding doctrine regarding state action.

Burdening Third Parties

Another subtle objection begins with the fact that courts are reluctant to grant religious exemptions from general legal obligations where a third party will bear the brunt of the exemption. That is why, in the Hobby Lobby case, Justice Alito emphasized that the business owners’ religious objections to providing health insurance covering forms of contraception they regarded as tantamount to abortion could be accommodated without depriving their employees of the insurance coverage. The insurer could simply provide that coverage directly. And because contraception insurance lowers aggregate health costs, the insurer would not be burdened either.

In the wake of Hobby Lobby and follow-up cases, some commentators questioned whether the Court’s solution was really the win-win proposition that the majority claimed it was. Furthermore, the Hobby Lobby Court did not say that religious accommodations are never available when they impose burdens on third parties. Accordingly, it would be premature to read Hobby Lobby as firmly establishing that the federal RFRA only requires cost-free accommodations.

Nonetheless, Hobby Lobby and similar state cases suggest that courts should hesitate before construing a RFRA to authorize an accommodation for religion that substantially burdens third parties. That principle can sometimes be implicated in litigation between the government and a religious claimant, as the dispute in Hobby Lobby itself indicates. But the potential for substantially burdening a third party is always present in private litigation in which one private party seeks an exemption from a civil obligation to another private party.

Thus, a court construing a general-purpose RFRA might conclude that to avoid burdening third parties with the costs of accommodating religious beliefs, the RFRA ought never to be available in private litigation.

Beyond the two considerations identified above, the particular language and legislative history of the federal RFRA and each state RFRA will bear on the question of whether to treat it as applicable in private litigation. One thing that is clear is that last week’s developments in Indiana and Arkansas raised but did not resolve important questions with which other legislatures and courts around the country will likely struggle for years to come.

Podcast: Play in new window | Download