Religious Freedom Laws: Digging a Little Deeper

640px-Bishops_Bible_Elizabeth_I_1569By Elaine Magliaro

Religious Freedom Restoration Act: Indiana

Discriminatory state Religious Freedom Restoration Acts appear to be all the rage in some parts of this country. Unlike the RFRA legislation passed previously in other states, the recent passage of Indiana’s RFRA was met with harsh criticism. Garrett Epps (The Atlantic) said that there was “a factual dispute about the new Indiana law.” The Indiana law has had its defenders–including The Weekly Standard and The Washington Post–who reported that the state’s RFRA was basically no different from the federal Religious Freedom Restoration Act that was passed in 1993. Epps said, however, that it becomes clear when you read and compare the tedious state statutes that “you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not.” He said that the Indiana law explicitly allowed “any for-profit business to assert a right to ‘the free exercise of religion.’”  Epps added, “The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s…”


The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”…Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Epps added that the Indiana statute showed “every sign of having been carefully designed to put new obstacles in the path of equality”–and that it had “been publicly sold with deceptive claims that it is ‘nothing new.’” He continued, “Being required to serve those we dislike is a painful price to pay for the privilege of running a business; but the pain exclusion inflicts on its victims, and on society, are far worse than the discomfort the faithful may suffer at having to open their businesses to all.”

Marriage and Conscience Act: Louisiana

Daniel Strauss (TPM) reported on Wednesday that the Human Rights Campaign (HRC) has warned “that a recently introduced Marriage and Conscience Act in Louisiana is actually worse than similar religious freedom bills in Indiana and Arkansas that received national criticism.” Sarah Warbelow, HRC’s legal director has warned that the Louisiana bill “flat out gives individuals a right to discriminate.”

In a statement, Warbler said, “This bill is worse than any RFRA [Religious Freedom Restoration Act] in that it explicitly allows discrimination based on an individual’s religious beliefs about marriage. Nobody gets to go into court for a balancing test, there’s no interpretation by a state judicial system. It flat out gives individuals a right to discriminate, period.”


The Louisiana bill lets businesses refuse to recognize same-sex marriage. Notably, it would also allow a business to not offer benefits to employees who are married to someone of the same sex if the business owner has religious objections.

Religious Freedom Acts

According to Dahlia Lithwick (Slate), these religious laws “have been described as reactions to a spate of big wins for the gay and lesbian community, most notably in reaction to marriage equality.” Lithwick said that according to recent press coverage, “these religious freedom acts have their genesis in pushback against LGBT rights.” She noted that a New York Times piece last week claimed that “the campaign by conservatives to make ‘religious liberty’ a rallying cry made its public debut in 2009, when a coalition of conservative evangelical, Roman Catholic, and Eastern Orthodox Christian leaders issued a manifesto they called the Manhattan Declaration, proclaiming that they would not cooperate with any laws that compelled them to recognize same-sex marriages or enable abortions.”


But these religious freedom arguments are actually rooted in an older movement, a decades-old effort to protect religious “conscience” through health care refusal laws. And it’s a movement that goes far beyond cake bakers and florists, sweeping in physicians, pharmacists, and insurers. Unless you see these new RFRAs as of a piece of this much broader, deeper social movement, you are missing the context that helps frame the debate. Doug NeJaime of the University of California–Irvine and UCLA law schools and Reva Siegel of Yale Law School expose these real origins of the new religious freedom claims in their law review article, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” coming out soon in the Yale Law Journal. In their telling, nothing about Indiana is new or surprising. 

Indiana Gov. Mike Pence defended his state’s RFRA as recalibrating the balance of civil rights and “religious freedom.” But these are simply not your father’s religious liberty claims. As Siegel and NeJaime note, the claim here is not that a religious individual is being forced to do something that violates his religion, such as shaving his beard; it is that he must be free from endorsing or enabling the behavior of others who are engaging in what he sees as sinful behavior. This was the central claim of the employers who sued in Hobby Lobby. They argued that it was itself sinful to provide health coverage to employees who might then use those benefits to engage in ostensibly sinful conduct. This is the same argument as the business owner’s claim that frosting a cake or arranging the calla lilies for a same-sex wedding is an act of “complicity” in a union that the business owner deems sinful.

Why does this matter? Because as Siegel and NeJaime argue, the new religious objections affect bystanders, ordinary folks in the greater community. These “third parties” are just people (often marginalized people, like gay couples or women seeking birth control) whose beliefs and values are not shared by the religious claimant. The authors point out that these new complicity-based religious conscience claims may well be authentic and sincere, as were the religious freedom claims originally contemplated by Congress when it drafted and passed the RFRA in response to a Supreme Court decision that declined to protect the religious freedom of Native Americans seeking to use peyote in a religious ceremony. But the new RFRAs may hurt third parties in ways these earlier state and federal RFRAs never quite imagined.

Lithwick said that it’s easy to think of bakers and pizza makers “as victims of religious discrimination, and even easier to suggest that gay patrons of such companies should simply be generous and shop elsewhere.” She noted, however, that Siegel and NeJaime had detailed “the myriad harms to third parties that have come about because of the health care exemptions that have been in place for years now. Patients are denied medical services, lose access to prescriptions, may not receive crucial medication, and more, and these refusals may become norms across hospital systems.” Lithwick added that such refusals “legitimize discrimination and stereotypes and also harm human dignity.”


We have seen how the religious conscience exemptions have played out in recent decades, and the harms are significant and tangible. It’s easy to say religious freedom claims stop at wedding cakes or photographs, but in the health care context, the harms have been broad and systematized.

We have to look at the big picture with regard to the religious freedom acts that are being proposed or that have become law in some states. We can’t just look at Indiana’s and Arkansas’ RFRA laws in isolation. As Lithwick said, they “may seem like efforts to strike a fair balance between religious freedom and LGBT rights.” She added that if these laws are “looked at as part of a decades-long enterprise—one that is seeing success every day in the courts—it’s important to see how these complicity claims have brought actual harms to third parties. These movements are neither new, nor limited in scope and ambition, and they are certainly not always harmless.”


When a certain class of people are discriminated against simply because of their nature it is destructive to everyone in any given society. Because if we allow one class of people, engaging in what is humanly normal behavior, to be punished for their behavior, what other people become next on the list of those to be punished.

~ Mike Spindell


Complicit as Sin: How gay marriage opponents transformed themselves from a religious majority to a religious minority. (Slate)

Our coming theocratic hell: Look out, the right’s “religious freedom” push is just the beginning: Draw the line from Hobby Lobby to Indiana: Religion has dangerously infected our legal system. It’s getting worse (Salon)

What Makes Indiana’s Religious-Freedom Law Different?: The new statute’s defenders claim it simply mirrors existing federal rules, but it contains two provisions that put new obstacles in the path of equality. (The Atlantic)

The real religious freedom fight is about to begin — in Louisiana (Washington Post)

Humans Sometimes Are Homosexuals, Why Do These Bigots Care? (Flowers for Socrates)

Human Rights Campaign: Louisiana Anti-Gay Bill ‘Worse’ Than Indiana’s (TPM)

Religion Laws Quickly Fall Into Retreat in Indiana and Arkansas (New York Times)


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9 Responses to Religious Freedom Laws: Digging a Little Deeper

  1. Elaine M. says:

    Can Religious Freedom Be Used to Discriminate?
    By Stephen Seufert
    State Director, Keystone Catholics

    Imagine a couple holding hands as they walk down the street to a diner for dinner. They walk into the diner and wait to be seated. The couple begins to notice other people who arrived after them being called for a table. After waiting patiently for over a half hour, the couple goes up to the receptionist and asks why they haven’t been seated yet. The receptionist calls over the owner of the diner who informs the couple they should eat somewhere else. The owner tells the couple his religious beliefs bar him from serving “your kind of people.”

    Depending on the perspective, this story could’ve been about an African-American or gay, lesbian, bisexual and transgender couples experiencing discrimination. The only litmus test for both discriminatory situations is skin deep — the color of one’s skin and two people holding hands. As such, the reason for such discrimination should never be confused with protecting “religious freedom.”

    American history has shown “religious freedom” was used to legitimize slavery and later constituted the bedrock of discriminatory Jim Crow laws in southern states. In 1964, the owner of a BBQ restaurant in South Carolina based his refusal to serve African Americans on the first amendment and his freedom to practice his religious beliefs. In lower court deliberations, a judge cited a previously rejected “religious freedom” defense which claimed the Civil Rights Act of 1964 was invalid because it “contravenes the will of God,” and constitutes an interference with the “free exercise of the Defendant’s religion.” The Supreme Court agreed with previous court rulings and unanimously ruled 8-0 to uphold the Civil Rights Act of 1964.

    Similar kinds of laws and tactics under the guise of “religious freedom” are now being used by business and lawmakers to discriminate against LGBT people.

    Freedom of religion — at least in the American tradition — meant being tolerant of different beliefs, while also peacefully coexisting. On the individual level, freedom to worship without persecution was one of the primary concerns for Americans. For generations, America was seen as a beacon of freedom and liberty for those who sought to escape the oppressive, and often times deadly, religious persecution and fanaticism of the old world.

    Individuals and groups discriminating based off perceived threats to their religious freedoms due to the lifestyle and beliefs of others signal a return to a period in human history where prejudice, hatred and violence reigned supreme. A time period in which people were divided not just by religion, but also by race and gender. Returning to such a period would constitute a defeat for all of humanity.

  2. Mike Spindell says:


    Excellent! As usual you provide the research that gives lie to the idea that the “Religious Freedom Laws” are spontaneous actions used to address discrimination against religious people. As you show they are in fact concerted actions by some elements in the religious community to impose their beliefs upon people who don’t share them. They would if given a chance recreate America as a theocracy every bit as intolerant as Saudi Arabia and Iran.

  3. Elaine M. says:


    I had read a few articles about the Indiana RFRA that said the law was different from the other state laws–and other article that said the fix that was made to the law isn’t quite the fix that it is made out to be. then I recalled articles that I had read some time ago about pharmacists refusing to fill prescriptions for contraceptives. Where does it end?

  4. bettykath says:

    I believe the Supremes help legitimize this kind of discrimination in the Hobby Lobby case by exempting businesses from laws intended for those businesses. It’s so disappointing to see otherwise intelligent people so skewed by their own biases.

  5. Elaine M. says:


    I think the Hobby Lobby case set the stage for some of these RFRA laws.This is the same SCOTUS that thinks the United States is a post-racist society.

  6. bk,

    Yep. However, I’m not sure if that is an intended or an unintended consequence of their drive to redefine corporations (once) limited legal personality. Stupid decisions like any other can have a ripple effect that is either compounding or even contrary to the desired outcome. Foreseeability is the question. And on that matter, it is entirely foreseeable that Hobby Lobby would be used to seek to allow otherwise impermissible behaviors under the guise of “religious freedom”.

  7. Elaine M. says:

    What Bill O’Reilly and Ann Coulter Don’t Understand About Christianity and RFRA
    By Derek Penwell

    RFRA. I know, right?

    I’m annoyed. Think about it for a minute: Has it dawned on you the intellectual contortions the backers of this law require of us in order to take them seriously?

    Distilled to its essence, the argument put forward by the enthusiasts for RFRA legislation is this: We want to reserve the right — based on our religious beliefs — to discriminate against those we don’t approve of, which requires that we be protected from being discriminated against because of our religious beliefs.

    Did you get that?

    Supporters of these RFRA laws would like us to believe two contradictory things simultaneously — depending on who the audience is: 1) To religious conservatives these politicians want to offer reassurances that the law is about preserving the rights of religious people (read: Christians) to be free from the consequences of discriminating in the name of religion, while at the same time 2) trying to convince the rest of the country offended by this parochialism that these laws are not intended to promote discrimination (because, seriously, we didn’t even think of that, and we are totally hurt that you could believe that of us).

    Look, if you want to pursue a law that allows people in the name of religion to refuse service to LGBT folks because of their sexual orientation or gender identity, go ahead. It’s a free country. But if you’re going to try to reintroduce a cultural reality, complete with sexually segregated wedding buffets, at least be honest about your intentions. You don’t get to have it both ways. You don’t get to act like an intolerant jerk and be free from the societal opprobrium that comes with acting like an intolerant jerk. Pick one.

    But the other thing that has really gotten under my skin in this whole RFRA mess is an assumption that regularly goes unchallenged. It’s not new. In fact, it’s become a kind of cultural orthodoxy, a short hand description of what many take to be reality. But the problem is it’s lazy and it’s not true.

    The source of my aggravation? The casual assumption that there is a “Christian” position on the issue of sexual orientation and gender identity, an uncontroversial point of doctrine that all Christians share in common. When it comes to the latest RFRA kerfuffles, it’s clear there are still those whose ideological commitments compel them to perpetuate the tired canard that the “Christian” response is to support religious freedom by opposing fairness for LGBT people.

  8. Harvey says:

    I remember despairing when JFK’s religion may have prevented his election.

    I am horrified to find myself fearing the consequences of all those Roman Catholics on the bench.

  9. Harvey says:


    The Formidable Ginsberg foresaw it all.

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