Last year Justice Ginsburg warned that the Supreme Court had “ventured into a minefield” with its expansive reading of the Religious Freedom Restoration Act in Burwell v.Hobby Lobby. In dismissing concerns that its holding would provide legal cover for discriminatory practices, the majority noted that regardless of religious belief, RFRA would not protect against racial discrimination. The Court’s silence as to other forms of discrimination was deafening. And Justice Ginsburg’s words proved prescient.
Emboldened by the Supreme Court’s Hobby Lobby ruling, numerous special interest groups are leveraging a RFRA made exponentially more powerful than its sponsors had contemplated when it was passed in 1993, to enable and promote discrimination. In an ongoing trend that started immediately after the Court issued its decision last June, organizations and businesses that object to contraception have sought not only a religious exemption from the contraceptive mandate under the Affordable Care Act, but are challenging the notice requirement that triggers the exemption, claiming that the mere act of providing notice constitutes an undue burden on their religious beliefs. As recently as last week, Justice Alito stayed a decision of the United States Court of Appeals for the Third Circuit which had held that the exemption form did not impose an undue burden on several non-profit organizations. While the ACA requires that coverage include access to reproductive healthcare for women, both the religious exemption and the refusal to enforce the administrative mechanism that triggers coverage by alternate means effectively authorizes unequal treatment of women regardless of federal civil rights law that prohibits gender-based discrimination.
While LGBT individuals are not protected under federal anti-discrimination law, numerous municipalities have passed ordinances banning discrimination on the basis of sexual orientation or gender identity. Some of those local statutes may face repeal under state legislation that would prohibit individual towns and cities from enacting measures to protect the LGBT community against discrimination. Next week the Supreme Court will hear arguments in Obergefell v. Hodges and its companion cases. While the central issues are the constitutionality of state bans on same-sex marriage and recognition of same-sex marriages from other jurisdictions, the distorted vision of religious freedom as a coercive tool looms large in the public discourse surrounding the case. As anti-marriage equality forces anticipate defeat in light of the rapid expansion of same-sex marriage due in part to federal court rulings which the Supreme Court declined to stay, there is mounting pressure on state legislatures to pass RFRAs that will allow religious conservatives to discriminate against same-sex couples without legal penalty.
The people who wrote and promulgated the Religious Freedom Restoration Act may have had the best of intentions to protect minority religious observances against government regulation that burdens free exercise of religion. But when the Court held that a business can rely on religious beliefs to opt out of laws it objects to, it became a statutory Frankenstein’s Monster. As women and same-sex couples continue to advocate for their civil liberties, RFRA will continue to provide businesses with a legal means of avoiding compliance with laws they find expensive or inconvenient, and religious conservatives with a mechanism for discriminating against those individuals whose very existence and conduct are seen as an affront to and violation of fundamentalist religious beliefs.