Over the past month or two, religious accommodation laws that have been enacted or proposed by states have attracted much attention in the media and among legal analysts. Such state laws are often called Religious Freedom Restoration Acts, or RFRAs—named and patterned after the federal RRFA adopted by Congress after the Supreme Court’s 1990 decision in Employment Division v. Smith, where the Court interpreted the First Amendment free exercise protection narrowly to reject a claim by Native Americans to use the prohibited drug peyote for religious purposes. RFRAs require that before government is allowed to impose a substantial burden on the practice of someone’s religion, the government must have a compelling objective that cannot be accomplished by any narrower means for doing so. State RFRAs have been around in some states for a few decades, but this spring saw a new round of state legislative activity in places like Indiana and Arkansas, presumably triggered by the anticipated tension between the tenets of some religions and the ruling most analysts expect the U.S. Supreme Court to render this summer making clear that the legal institution of marriage cannot be denied to same-sex couples.
Other Verdict columnists have already offered insights and arguments about the best way to understand and interpret state RFRAs. In this two-part series, we offer our own take on the state RFRA movement and how best to incorporate it into a nation dedicated to free religious exercise and separation of church and state at once. In Part One, in the space below, we offer some reactions to the doctrinal analyses presented in a recent essay by Verdict columnist Michael Dorf. In Part Two, in a few weeks, we widen the focus to examine more fundamentally how and when state RFRAs came about and what their origin should mean for how they should be implemented.
Mike Dorf’s Analysis of State RFRAs in the Context of Private Litigation
Mike Dorf’s elegant doctrinal analysis of state RFRAs focuses on whether these laws “should apply in private litigation [i.e., litigation in which neither party is a government entity] if the statute is silent on the matter.” Mike offers a couple of arguments for why state RFRAs perhaps ought not to apply to private lawsuits altogether. His first argument begins with a reminder that RFRAs are designed to “restore” 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 applies only against the government, it is natural to assume that a RFRA should be available only in litigation against the government.”
But, as Mike rightly points out, oftentimes constitutional rights are at stake and vindicated in cases in which the government is not a party, but in which a party is using some law or policy the government has adopted as the basis for its legal position. So, for example, when a public-figure plaintiff sues a magazine under the state tort law of defamation, the defendant can properly invoke the First Amendment as a defense, even though the plaintiff is a private individual rather than the government, because the plaintiff is relying on state-adopted tort law for his claim. It is the state, through the creation of its tort law, that is effectively burdening the defendant’s speech.
Or, as in another example Mike offers, if a state passes an alimony law that treats men and women unequally, such a law can be challenged in a lawsuit between a divorcing husband and wife, even though the state is not a party, because one of the parties is so directly invoking the state law as the basis for asking a court to do something.
Mike properly acknowledges that even in the context of religion, a state’s fingerprints can be all over a burden imposed on someone’s religion, even if the state is not doing the litigating. So, for instance, if a state gives a landowner’s neighbor a right to veto the landowner’s decision to expand his building, and a church that wants to expand is blocked by a vetoing neighbor, the church might seek to invoke the free exercise of religion as a basis for resisting the veto, even if the opposing party in the lawsuit is the neighbor to whom the state has given the veto right instead of the state agency itself.
Does Private Litigation Under a RFRA Implicate State Action in a Way Different From Cases in Which Government Is a Party?
After all this, however, Mike argues that the state’s involvement in RFRA cases is distinct in a way that perhaps argues against allowing state RFRAs to be invoked in private litigation. Says Mike, about the examples he offered earlier: “When [a defamation defendant] invoked the freedom of the press against [the defamation plaintiff], it objected that the [state] tort rule was defective in permitting a public figure to prevail [under a standard] that afforded insufficient protection for free speech. . . [And] [w]hen [a husband] resisted his alimony obligation, he complained that the [state] statute favoring women over men denied him 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 own rights. In contrast, a RFRA claim does not challenge any rule or standard.”
Here is where we think we disagree with Mike. A RFRA claim does challenge a rule or standard—the rule or standard on which the private party opposing the religious claimant is relying in the private litigation. The fact that the right a RFRA claimant seeks to invoke is a statutory (RFRA-created) right to religious accommodation, rather than a constitutional right (such as the right to free speech or equal protection), is beside the point; remember, RFRAs are designed to “restore,” by statute, the liberties previously recognized under the First Amendment’s Free Exercise Clause. The RFRA claimant has been conferred a right, just as much as a free speech or equal protection claimant has been. And state law, it is alleged in RFRA cases, is protecting the other party’s ability to violate that right—by substantially burdening the religious claimant’s exercise of his or her religion.
Mike’s instinct that a RFRA claimant is not alleging that any state law creating a burden is “defective” is understandable but, we think, wrong. A law challenged by a RFRA claimant is indeed “defective” in the legally technical but important sense that it (allegedly) fails to adequately accommodate religion, which is what the RFRA seeks to guarantee. In the defamation case alluded to above, state tort law wasn’t defective in any a priori sense; it was defective only in the sense that it failed to sufficiently accommodate free speech. And RFRA claimants make the same claim as to religion.
Indeed, the example Mike offers concerning the neighbor’s veto over land-use decisions seems to illustrate our point. If a church’s plans to expand are blocked by a zoning board, clearly the church could invoke both the First Amendment prior to 1990, and a state RFRA nowadays. The same should be true if the opposing party is not the zoning board, but the vetoing neighbor. The law giving the neighbor veto power is defective not in a generic sense, but only in the sense that it may have the effect of frustrating religious freedom. Yet it ought not to matter whether the opposing party is the government or the neighbor himself, or whether the claim is brought under the First Amendment (before it had been watered down) or a RFRA (that seeks to reclaim the undiluted religious right).
We think our analysis makes sense in part because a state can (and often does) elect to have a lot of different kinds of laws enforced through private causes of action—and when it chooses to do so we often find there to be “state action” in the enforcement. The Supreme Court’s willingness to find state action involves several factors and seems to vary depending on the particular freedoms that are at issue. We note that the Court has taken a particularly expansive approach to state action in interpreting the Establishment Clause, and it would not be unreasonable to argue that a similarly expansive understanding of state action should apply Free Exercise values. And if there is state action, if the burden would be sufficient to trigger free exercise review if the state itself enforced the law, why should it make any difference if the law is enforced by a private party?
What About Third-Party Burdens?
Mike’s second argument for perhaps not applying state RFRAs to private litigation arises from the fact that in all private litigation, accommodating religion creates “the potential for substantially burdening a third party.” And the Supreme Court, in the recent Hobby Lobby decision and elsewhere, has given indications that accommodating religion when such accommodation takes the form of inconveniencing government is one thing, but religious accommodations that impose on third parties may be another thing entirely.
Like Mike, we think third-party burdens ought to figure prominently in any application of state RFRAs. But we are not sure a prophylactic rule prohibiting invocation of a RFRA in all private litigation is necessary to properly take account of third parties. Because state law may allow private individuals who don’t suffer much, if any, injury to be in litigation against religious adherents (remember that state courts are not limited by the Constitution’s Article III standing rules), and because some third-party injuries may be of such a nature that avoiding them cannot reasonably be thought to be a compelling government interest, we think the better course is not to categorically reject RFRA claims in private litigation, but to examine any third-party burdens on a case-by-case basis. When racial or gender discrimination is at issue, the third-party costs will justify denying the accommodation. But imagine the following two hypotheticals:
- Suppose a municipal stadium district has a rule that says no one can wear hats taller than 5 inches to sporting events, because people’s views get blocked, and allows for a private right of action in small claims court by aggrieved persons. Suppose someone wears a turban to a football game, and gets sued for $500 by another fan seated behind him who had to stand up more often to see the action.
- Or suppose a City bans discrimination in the provision of goods and services against people who openly display tattoos. A religious small businessperson who runs his business out of his home declines to serve a patron because the patron refuses to cover up a sexist tattoo on his upper arm, and display of such an image in the home violates the religious tenets of the businessperson. The aggrieved customer sues.
In both of these examples, accommodating religion does create some state-recognized burdens on third parties. But are they the kinds of burdens that would justify a flat, prophylactic rule prohibiting invocation of a RFRA in all private litigation? We are not yet sold on that. Thus, if a state RFRA does not by its terms prevent its application to private litigation (and, of course, every RFRA must be interpreted in light of its own language, read in the context of the entire statute), we think the better course may be to examine each such private litigation case on an individual basis, to look carefully at the extent of state action and third-party burdens.
In Part Two of this series, we locate state RFRAs in a larger historical and doctrinal context, and offer some thoughts on how to give meaning to state RFRAs while avoiding some of the externalities and complications with which Mike is properly concerned.
Allowing a private person to raise a free exercise defense against another private person where the burden falls on a third party was foreshadowed – – but not answered – – in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); mandatory pledge of allegiance reversed after only 3 years. They did not reach the Jehovah’s Witnesses’ Free Exercise claim because ordinary free speech had already settled the issue. However, they of course noticed that children refusing to recite the pledge did not impose any burden on anyone else. Cakes and cameras are everywhere. The burden on the buyer – – go to another bakery – – is minuscule, while the burden on the baker who thinks assisting an SSM is a sin is large. Just go hire someone else.