Religious Freedom Restoration Act: how a legislative 'miracle' got discriminatory

When the federal Religious Freedom Restoration Act was signed into law by former president Bill Clinton on 16 November 1993, it did so with rare bipartisan support, prompting the commander-in-chief to quip: “The power of God is such that even in the legislative process miracles can happen.”

In Indiana, the memories of that miracle have faded as state RFRAs take heat from critics across the US. The state’s version of the law has provoked such vitriol since it was signed last week that Republican lawmakers on Thursday unveiled a proposal to amend the law’s language.

Critics say that the RFRA gives businesses and other groups defined as persons under the law a way to discriminate against LGBT people, who are not a protected class in the state.

Law experts agree that it is unlikely that such discrimination would be allowed when actually presented before a court, but concerns remain about the motivations of those who pushed for the bill – namely those who oppose same-sex marriage, which became legal in the state in October 2014.

So, how did a law that brought diverse religious groups and divided political parties together in 1993 become a polarizing issue 22 years later?

In 1990, the US supreme court upheld a lower-court decision to deny unemployment benefits to two men who had used peyote as part of a Native American ritual and subsequently lost their jobs.

But then, in June 1993, the court ruled that a Florida city’s ban on animal sacrifice and other ordinances was meant to suppress a Santeria church that planned to expand its presence in the city of Hialeah.

The two cases raised questions about religious freedom in a country founded by people fleeing religious persecution in England. Thus, lawmakers began discussing the law which would later be known as RFRA.

Barry Lynn, executive director of the nonprofit Americans United for the Separation of Church and State, worked for the American Civil Liberties Union when the federal law was signed in 1993.

The idea that it could be used to discriminate was barely considered, if at all. “It was never intended to become a sword to be used to hurt other people,” Lynn said.

Then, the 1997 case Boerne v Flores determined that RFRA exceeded Congress’s authority and that the government could not determine how states enforced its contents.

That was when the first wave of state RFRAs began. At that time, same-sex marriage was not legal anywhere in the US, and RFRA cases were rare and typically favored the non-religious. In that first wave, these laws were enacted with little fanfare or backlash.

But in June 2013, the supreme court struck down parts of the Defense of Marriage Act, paving the way for the unexpectedly rapid legalization of same-sex marriage across the US, including Indiana.

State RFRAs began cropping up again, in some cases pushed by conservative groups and lawmakers opposed to same-sex marriage. “The big deal now is that same-sex marriage is coming to America,” said Lynn.

And the law’s use as a weapon has also been seen in the fight against women’s reproductive rights.

Days after the Windsor decision was announced, the supreme court ruled in the Hobby Lobby case that “closely-held” companies owned by religious people were exempt from a part of Obamacare that has providers cover employees’ birth control.

The focus in Indiana, however, is LGBT rights.

University of Virginia law professor Douglas Laycock testified in support of RFRA when Congress considered it in the early 1990s. He thinks the backlash to the Indiana law is strange and unjustified.

“The legislature didn’t enact their motivations, it enacted a statute that tracks the federal RFRA that’s been around for 22 years know,” Laycock said. “We know what the statutes do and the effects have been quite modest.”

He believes RFRA laws are important because they protect religious freedom, and no one has ever been exempted from discrimination under them.

“Forcing a religious person to violate his understanding of God’s will and his religious obligations disrupt his relationship with God, which he considers the most important relationship in his life,” said Laycock. “That’s a serious thing and we should not do that without a very serious reason.”