Much has changed in the 25 years since the Religious Freedom Restoration Act, or RFRA, was enacted.
It was the fall of 1993, when Democratic President Bill Clinton signed RFRA into law. Few questioned its necessity. RFRA was introduced in the House by then-Rep. Chuck Schumer, D-N.Y., and Sen. Ted Kennedy, D-Mass. In the words of Rep. Nancy Pelosi, D-Calif., RFRA “provide[d] for the re-establishment of fair standards to determine if government intervention is necessary.”
Liberal and conservative groups and politicians of both parties joined forces. RFRA passed the Senate 97-3. It passed the House of Representatives unanimously. It had the full support of the American Civil Liberties Union.
The legislation was birthed after the U.S. Supreme Court’s 1990 opinion in Employment Division v. Smith. In Smith, the court reversed longstanding First Amendment application when laws conflict with religious practices. Many were concerned that this decision would open the door for the government to freely burden the religious exercise of Americans.
RFRA merely reimposed, by statute, the rules that had applied to federal religious liberty claims for decades through the overturned court precedent. RFRA doesn’t guarantee any particular outcome; some religious liberty claims win, but many lose. RFRA just says that the government must accommodate people’s religious practices when it can, and gives citizens their day in court when they believe the government has infringed on their rights.
None of the First Amendment rights is absolute, but to restrict those rights the government has to prove it has a compelling reason, and prove it is doing so in the least restrictive way.
Fast forward to July 2017, in the 115th Congress. Fifty House Democrats co-sponsored a bill that would repeal RFRA. A majority of House Democrats support H.R. 3222, a bill authored by Sen. Kamala Harris, D-Calif., and called the “Do No Harm Act.” In short, it means that the explicit constitutional right of the free exercise of religion must bow to rights absent from the Constitution.
Groups supporting the gutting of RFRA cry that religious beliefs are just a cover for “discrimination” and “hate”. The ACLU announced that it now opposes RFRA. Some people have conscientious objections to participating in abortion or same-sex weddings, and the ACLU doesn’t want such disfavored religious minorities to enjoy the same accommodating standard as everyone else. It seems that the organization’s current leaders consider their own beliefs as the true gospel and those that don’t capitulate must bow before the secular view or else face government discipline.
It’s a time of great political and philosophical division. The secular Left no longer pretends to tolerate other viewpoints. But it was precisely for such a time as this that RFRA was created. When religious views are unpopular and inconvenient, it stands in the way of state governments forcing believers of all faiths to abandon their promises to their God.
That is what happened to Aaron and Melissa Klein, who were fined $135,000 by the state of Oregon — forcing them out of business — because they sought to run their business in a manner consistent with their religious beliefs. They are represented by my law firm, First Liberty Institute, and they now have a petition pending before the U.S. Supreme Court.
Only a few months after the Supreme Court delivered Masterpiece cake baker Jack Phillips a victory and a scathing blow to the state of Colorado, Phillips is back in court once again to defend himself from government discrimination. In Masterpiece, the Court presented the most basic aspect of First Amendment principles — the government cannot be hostile to religion, it must be neutral. Yet Colorado persists in doing otherwise.
In Obergefell v. Hodges, Justice Samuel Alito warned that it would not be long before “those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by government, employers, and schools.”
The prophetic nature of this remark cannot be ignored. Current trends quell religious dissent and chill the speech of those who have convictions that contradict the majority. The tides have turned in America. There is little to no chance that any Democrat would support RFRA now, let alone a nearly unanimous Congress.
On the anniversary of RFRA’s passage, acting Attorney General Matthew Whitaker said, “The enactment of RFRA was a bold affirmation that religious freedom and freedom of conscience are precious and deserving of protection, even if this may make things harder for the government.”
Tolerance that is limited to favored groups isn’t tolerance at all. All Americans, regardless of their religious faith or lack thereof, should celebrate the protections RFRA provides.
Keisha Russell is associate counsel to First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.
