Arkansas Gov. Asa Hutchinson has asked lawmakers to rework the state’s new Religious Freedom Restoration Act (RFRA) to make it conform with the federal RFRA that has been law for more than 20 years. “The bill that is on my desk at the present time does not precisely mirror the federal law,” Hutchinson said at a news conference in Little Rock Wednesday. “Therefore, I asked that changes be made in the legislation. And I’ve asked the leaders of the General Assembly to recall the bill so it can be amended so it can reflect the terms of the federal Religious Freedom Restoration Act.”
After taking a terrible beating in the media, Indiana Gov. Mike Pence is said to be working on a similar plan in his state — an effort to make the Indiana RFRA reflect the federal law.
Suppose each governor is successful, and both the Arkansas and Indiana Religious Freedom Restoration Acts emerge exactly the same as the federal RFRA. If Hutchinson, Pence and the law’s supporters believe that the forces arrayed against them — the protesters, the Democratic politicians, the CEOs, the press — will let up, they are mistaken. The activists who have pushed hard against the Indiana and Arkansas RFRAs also want to get rid of the federal RFRA, so it’s unlikely that making the state laws like the federal statute will do anything to mute the controversy.
It all goes back to a completely unrelated matter — the Hobby Lobby case. In that matter, Hobby Lobby executives used RFRA to argue that they should not be forced under Obamacare to provide employees with the forms of contraception the company’s owners believed to be abortifacients. Hobby Lobby’s victory in the Supreme Court drove some liberals to despair, leading them to conclude that there was something terribly wrong — not with Obamacare, but with RFRA.
In January 2014, a group of 19 Democratic lawmakers, all of whom had voted for RFRA back in the 1993, filed a brief in the Hobby Lobby case arguing that they had never intended RFRA to apply to issues like Obamacare and abortion. (The senators were: Patty Murray, Max Baucus, Barbara Boxer, Sherrod Brown, Maria Cantwell, Ben Cardin, Dick Durbin, Dianne Feinstein, Tom Harkin, Tim Johnson, Patrick Leahy, Mark Levin, Ed Markey, Bob Menendez, Barbara Mikulski, Harry Reid, Bernie Sanders, Chuck Schumer, and Ron Wyden.) “Congress could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA,” they wrote in the brief. “In passing RFRA, Congress had no rational reason to anticipate, nor could it have contemplated based upon that well-established precedent, that a court would later choose to unilaterally extend RFRA’s protections well beyond those precedential bounds to secular, for-profit corporations.”
The bottom line is that Democratic lawmakers are now distancing themselves from their own work. And for others on the left, Hobby Lobby meant they had had quite enough of RFRA. A July 2014 piece in The Nation was headlined: “Why It’s Time to Repeal the Religious Freedom Restoration Act; The law, passed in 1993 with near-unanimous support, has become an excuse for bigotry, superstition and sectarianism.”
So don’t look for the critics of the Indiana and Arkansas RFRAs to be satisfied if those states’ legislatures make their laws identical to the federal RFRA.
But doing so still might be a smart thing for Pence, Hutchinson, and other supporters of the new RFRAs to do. Making their laws identical to the federal RFRA would mean they could accurately explain that they are simply putting into state law what so many Democrats, including President Bill Clinton, put into federal law. The talking point would be true, and relevant. And it would leave Democrats fuming about Hobby Lobby and how they no longer support what they once supported because it has been used against Obamacare. Democrats would be the ones explaining themselves, and not Republicans.
And GOP officials would have a lot of material to work with. Just for the record, here is what then-Rep. Chuck Schumer, the lead sponsor of RFRA, had to say about the bill when it was debated on May 11, 1993:
Mr. Speaker, as the lead sponsor of the Religious Freedom Restoration Act, along with the gentleman from California [Mr. Cox], I want to thank Chairman Edwards for his work on this bill and support in bringing the bill to the House today. I also want to thank and give special mention to the efforts of Steve Solarz, who originally introduced this bill in the 101st Congress, and his support for religious freedom first brought this issue to the Congress.
As we all know, the first amendment guarantees the right of free exercise of religion, and traditionally the Supreme Court interpreted that guarantee to mean religious freedom can be infringed only when Government has a compelling interest to do so. And this was sort of an exquisite balance, one of the times that it works out almost just right in Anglo-Saxon jurisprudence when the Government really had a compelling interest. Yes, they could infringe on religion, and when they did not we would let the religious issue predominate, and it made eminent sense. It was working admirably well.
But in 1990, in the infamous case known as the Smith case, the Supreme Court changed the standard radically and said that the Government only had to show a legitimate interest in order to burden religion, unless the religious practitioners could show they were directly targeted for persecution. In my opinion, that decision rubbed against totally the American grain of allowing maximum religious freedom . Of course when the Government had a compelling interest, that is where it should stop. But up to that point, why not let religious freedom bloom?
But, incomprehensibly, Justice Scalia’s decision explained that requiring the Government to accommodate religious practice was a luxury. Tell to millions and millions of Americans that religion is a luxury, and I think we get the reaction that we have had universally here on the floor from the most liberal to the most conservative Member.
Smith was a devastating blow to religious freedom , and we are trying to undo it. Under Smith, the practice of using sacramental wine, wearing a yarmulke, Kosher slaughter and many other religious practices all could be jeopardized.
The parade of horribles had already begun. In the 3 years since the case, evangelical store-front churches have been zoned out of commercial areas and Orthodox Jews and the H’mong people have been subjected to autopsies in violation of their religious faiths.
Quite simply, we cannot allow this to continue. The Founders of our Nation, the American people today know that religious freedom is no luxury, but is a basic right of a free people.
The bill will restore the first amendment to its proper place as one of the cornerstones of our democracy. It is simple. It states that the Government can infringe on religious practice only if there is a compelling interest and if the restriction is narrowly tailored to further that interest.
I want to thank everyone for their broad and bipartisan support, the dozens of religious groups from across the spectrum, the Agudath Israel of American, the Baptist Joint Committee, the National Association of Evangelicals, and the National Religious Action Committee, as well as President Clinton and the Attorney General for their support of this bill. I urge my colleagues to join me today as we strike a blow for religious freedom . We should vote to restore one of this country’s cherished traditions by voting for the Religious Freedom Restoration Act.
