Is the Indiana Religious Freedom Restoration Act a protection of religious liberty or a license to discriminate, likely aimed at gays and lesbians? Some people view it as entirely one or the other, but the conventional wisdom among thoughtful pundits is now that it is both.
The act clearly allows business owners to deny service on religious grounds, and in today’s world, gays and lesbians are the likely targets. That is discrimination. But it is discrimination based on religious belief, and a law that authorizes such discrimination seems to be expanding religious liberty.
{mosads}And so, pundits tell us, we have a difficult balance to strike. As David Brooks writes, what we are seeing is part of a decades-long “struggle to balance civil rights and religious liberty.” People may decide that one of these values is more important than the other in certain cases, but they are both important, and both deserving of respect.
That sounds wise and judicious. Balancing important values while respecting both always does. But there’s a problem with this account, which is that one side of the scale is actually empty. Religious liberty is not at stake in this controversy—the U.S. Supreme Court has said so. The best way to see this is to start with an argument that supporters of the Indiana act often make. The federal government enacted a very similar Religious Freedom Restoration Act in 1993; surely Indiana can’t have gone too far wrong by following that.
Of course, Indiana didn’t follow it exactly. There are some differences in wording between the federal and state versions of the act. The Indiana law explicitly extends its protection to for-profit businesses, and it can be raised as a protection not just against government action but also against lawsuits by ordinary citizens. The upshot, as Garrett Epps notes, is that the state law was clearly designed to allow private businesses to refuse service on religious grounds.
That was not the purpose of the federal RFRA, which was inspired not by the plight of florists or bakers who might be compelled to provide for gay weddings but by that of Native Americans prohibited from exercising their religion by using peyote. As White House spokesman Josh Earnest asserted, federal RFRA was designed to protect religious minorities against the government.
Still, judges might have interpreted the federal RFRA to include the same expansive protections as the Indiana act. The Supreme Court’s recent Hobby Lobby decision comes close. There’s a larger point to be made about the federal RFRA, though, which seems thus far to have escaped mention. Insofar as it attempted to protect religious liberty from state laws, the federal Act was invalidated by the Supreme Court.
In that 1997 decision, City of Boerne v. Flores, the Supreme Court said something very relevant for those who want to respectfully balance religious liberty and civil rights. It said that religious liberty under the U.S. Constitution does not include the right to refuse to follow a generally applicable law that regulates conduct, rather than belief.
When states enforce such laws—when, for instance, they require businesses to serve all comers, regardless of the owners’ religious objections—they are not violating the religious liberty protected by our Constitution. And when Congress enacted a law that gave individuals the privilege to ignore generally applicable laws based on their religious beliefs—when it enacted RFRA—it was not protecting religious liberty under the Constitution.
Instead, said the Court, Congress was attempting to redefine that right. Congress is not allowed to make “religious liberty” mean whatever it wants, and so the license that the federal RFRA gave believers to ignore state laws in the name of their religion was in fact itself a violation of the Constitution.
The federal Religious Freedom Restoration Act survived with respect to federal law—that’s how we got the recent Supreme Court Hobby Lobby decision. But it did so not because it protected religious freedom—again, according to the Supreme Court, it does not—but because Congress can modify its own laws however it wants. That’s how the Court interpreted the Act, as putting a non-constitutional exemption into all federal laws.
The Supreme Court is not likely to invalidate Indiana’s law, or any other state RFRA—like Congress, states can create exemptions from their own laws. But what the Boerne decision tells us is that whatever those acts protect, it is not religious liberty under the United States Constitution. According to the Supreme Court, that is, what we are seeing here is part of a decades-long struggle to balance civil rights and discrimination.
Roosevelt is a professor of Constitutional law at the University of Pennsylvania Law School and the author of the novels In the Shadow of the Law and Allegiance.