The 2016 RFRA Decline Is Due to the Difficulty of Selling Discrimination and Child Endangerment as Good Policy

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The pace of new state Religious Freedom Restoration Acts was slowed last year when Indiana experienced harsh pushback from major corporations unwilling to do business in a state that permits discrimination against LGBTQ customers. Mississippi had already enacted an extreme RFRA, but Indiana was forced to backtrack.

This year, Indiana was quickly out of the gate but then took a U-turn after it considered the worst recent development in RFRAs, which would have compounded the mischief caused by RFRAs and extended the same ridiculous test to the other elements of the First Amendment, like the freedom of speech. As I explain here, legislatures have no business monkeying around with the level of First Amendment rights, whether free exercise or free speech.

That left bills pending in Colorado, Georgia, Hawaii, Iowa, Maine, Michigan, New Mexico, North Carolina, Oklahoma, and West Virginia. The only activity has been in West Virginia and Georgia, which shows that the more we discuss and dissect the RFRAs, the worse they look. Members of Congress had this experience over the years with the federal RFRA, as I recount in a recently filed amicus brief for Rep. Bobby Scott (D-Va.) in the Zubik v. Burwell case pending at the Supreme Court.

Georgia Senate Turns a Narrower Religious Freedom Bill Into a License to Discriminate

The Georgia House passed unanimously a Pastor Protection Act (HB 757) that basically copied what the First Amendment already guarantees: no pastor would have to officiate at any wedding to which he or she objects; business owners could be closed on the owner’s day of worship; and religious entities would not have to rent their space out for wedding ceremonies with which they disagreed. The bill had the advantage of letting members look like they were guaranteeing religious liberty and the virtue of not foolishly toying with the standards under the First Amendment.

But the Senate then beefed up the bill with rights for believers to discriminate against LGBTQ couples (SB 284): it now would “prohibit discriminatory action against a person who believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman or that sexual relations are properly reserved to such marriage.” Translation: a believer won’t be “discriminated” against if he or she does not abide by public accommodations, civil rights, or fair housing laws applicable to LGBTQ couples. In its zeal to ensure that no good Georgian would ever have to deal with same-sex couples married or not if they did not want to, the bill also (likely unintentionally) opens the door to discriminating against unmarried heterosexual couples.

Here is why the demand by conservative Christians and other believers “not to be discriminated against” in this context carries an unavoidable stink. Their argument is that they do not want to be made “complicit” in or “participate in” same-sex marriages because they believe such marriages violate God’s law or rules or their religion’s beliefs.

I think this is a pretext to discriminate against the LGBTQ community. Why? Because there are likely many whose conduct violates their faith and these believers gladly take their money in the marketplace.

For example, how do these believers weed out the other “undesirables” among their customers: the pedophiles, the husband who beats his wife, or the hit-and-run driver? I assume that each of these behaviors violates their faith, and so, frankly, they need to explain why they are golden with baking a cake for the marriage of a pedophile to a spouse with children but can’t abide to bake a cake for a same-sex couple. Has such an objection ever even occurred to them?

Do they scan the headlines and police news blotter each morning to create a list of people they will not serve that day based on who was charged with domestic abuse or drunk driving? How about those believers of faiths that disapprove of divorce, contraception, or abortion? Do they deny service if they overhear a customer saying they were “guilty” of any of these sinful behaviors?

The short answer is: “No.” They serve everyone who comes through their door without reference to their private lives except LGBTQ individuals. That is the very essence of invidious discrimination. It is the spirit of the Supreme Court’s decision in Romer v. Evans. Let’s face it, the more “religious liberty” is invoked for these purposes, the less it looks like religious liberty and the more it resembles invidious discrimination.

West Virginia, Its RFRA, and the Threat to the Health of Children

West Virginia is also seriously considering a more comprehensive RFRA, which passed the house already. The stink of discrimination is all over it as well, as one Episcopalian priest pointed out. West Virginia’s bill invites not only discrimination, but also child endangerment.

West Virginia has led the country in the protection of its population from communicable diseases, unlike California, whose previous vaccination exemption was wide enough for anyone to refuse to immunize their children from common communicable diseases. In California there have been serious outbreaks in recent years, leading the state to backtrack on its exemption. In contrast, West Virginia has historically given parents no choice about vaccinations, but a West Virginia RFRA could change that.

The devil is always in the details, and that is true 10-fold when it comes to a RFRA, which is a form of “blind accommodation” in that you won’t know what mischief it causes until it happens. There is little question that the West Virginia RFRA would open the door for religious believers to refuse to vaccinate their children. True, vaccination serves a “compelling interest,” but what is the “least restrictive means” for the government to serve that end? I have no doubt that a judge could conclude that letting select religious parents avoid vaccination is the “least restrictive means” on the theory that everyone else will vaccinate their children. What California should have taught everyone, though, is that once that no-vaccination door is open, it is hard to shut it, and the cost is the re-introduction of previously eradicated dangerous diseases.

LGBTQ and other civil rights groups are fighting the good fight against RFRAs and their progeny like Georgia’s latest bill, but the more capacious RFRAs don’t stop at discrimination. They also put children at serious risk. West Virginia is the one state now taking seriously a bill that both discriminates and endangers.

It is no wonder that these bills are locked up in committee in the other states where they have been introduced.

  • Frank Seager

    “For example, how do these believers weed out the other “undesirables” among their customers: the pedophiles, the husband who beats his wife, or the hit-and-run driver?”

    They don’t “weed out ” homosexuals either. They simply decline to service a ceremony that celebrates same sex marriage. The same as a Native American might decline to service a Columbus Day celebration, or a gay person might decline to service a Christian rally against sin (including homosexual behavior). I don’t think that anyone would refer to these choices as “weeding out” Italians or “weeding out” Christians. Most would simply acknowledge the right of a business owner to decline to be part of an event that violates his beliefs or conscience.

  • Frank Seager

    “For example, how do these believers weed out the other “undesirables” among their customers: the pedophiles, the husband who beats his wife, or the hit-and-run driver?”

    They don’t “weed out” homosexuals either. They simply decline to service a celebration for a same sex marriage. Just as a Native American might decline to service a Columbus Day celebration. This refusal would not constitute “weeding out” Italians or others of European ancestry. Similarly, a homosexual might decline to service a Christian rally against sin – including homosexual behavior – without “weeding out” Christians.

  • Dee Stonewall

    I’ve been following your JURIS VERDICT articles for years, Professor Hamilton. And greatly appreciate your dedication, expertise, and on-going advocacy. Again you’ve hit the nail on the head w/ this legal article regarding RFRA. It has been years since I have practiced law. So I enjoy keeping abreast of issues that you raise. Thank you.