Too Much Misinformation about RFRA

Abundant misinformation surrounds and warps discussions of the law widely identified under the acronym RFRA. The letters RFRA stand for Religious Freedom Restoration Act.

The title was first used for a federal law passed in 1993. The case that triggered the law was a court ruling that criminalized use of peyote by Indian tribes who had historically considered this substance crucial to their religious observances. The court refused to accept the argument that the “free exercise” clause in the First Amendment trumped federal drug laws designed to suppress use of hallucinogenic drugs. RFRA establishes a right to a court hearing in the event of conflicts between a compelling interest of the government and the firmly held religious convictions of citizens. It further requires that the solution to the conflict impose the least possible burden to the citizen’s conscience.

Such conflicts are not new. Since the early days of US history, citizens whose religious convictions prevented them from killing anyone, even in a military action, have faced severe challenges to their religious convictions. The government has a compelling interest in defending the nation against aggression, but that interest conflicts directly with a religious conviction that there is no justification for killing a human being, even in defense of the nation. Prior to 1993, people whose convictions were challenged by the interests of government found protection in the First Amendment guarantee of the “free exercise” of their faith. Pacifists whose pacifism was rooted in a conscientious objection were drafted into military service along with other citizens, but conscientious objectors drove ambulances, served meals and typed reports. They did not shoot people or lob grenades. Native Americans who tried to obtain similar relief from conviction as criminals when they used peyote in religious practices going back centuries were unsuccessful, and that problem motivated the passage of RFRA at the federal level in 1993.

Recently, RFRA provided the basis for the Supreme Court’s Hobby Lobby decision, where the court found a solution to the conflict between the right of Hobby Lobby’s owners to live by their religious convictions and the government’s compelling interest in providing contraceptive and abortifacient drugs to citizens at no charge. It was RFRA’s mandate that required the government to accept the solution least burdensome to the conscience of the citizen. (A side issue in this case was the application of the Citizens United decision that made Hobby Lobby a person under the law.)

Many states have passed laws that embody the meaning of the federal law at the jurisdiction level of the state. The religious liberty protection of the First Amendment applies to all citizens in all states, because it is the Constitution, but federal law generally applies only where there is federal jurisdiction. This limitation is in keeping with the principle of federalism embodied in the Constitution. Every state is an autonomous, sovereign entity in the union of states, and this is as it should be.

Sadly, many people are both ignorant of the meaning of federalism in the Constitution and completely uninformed about the language of RFRA. That is the obvious explanation for a journalist to write that “Indiana’s Republican governor, Mike Pence, triggered a firestorm in his state this month by signing a law that would allow businesses to refuse services to certain groups or people based on their religious beliefs.” Emphasis mine.) The law referenced in the statement is Indiana’s state-level RFRA, and the statement is a complete perversion of the language of RFRA.

RFRA does not allow businesses to refuse services to anyone.

At the federal level, RFRA provides a forum where conflicts between the compelling interests of the federal government and the religious convictions of private citizens can be resolved. It does not specify the manner or the form of the resolution.

When the Supreme Court invoked RFRA in its decision in Hobby Lobby, it was the court, not RFRA, which specified the resolution of the conflict. RFRA specified that the least burdensome resolution must be found, and the court declared what the least burdensome resolution was.

That is also the way RFRA works at the state level. RFRA does not specify that religious considerations will always trump law. RFRA does specify that when law and religious convictions conflict, the resolution may be worked out in court. RFRA does not specify the way that resolution will be shaped. RFRA simply affirms that the resolution that serves the government’s compelling interest must be the resolution that places the least burden on the conscience of the citizen.

Some of the state RFRA mirror the federal law almost to the punctuation, while others have added language that reflects things learned in adjudication of the federal law. Indiana’s law, for example, added language to assure that businesses would always be treated as persons with religious liberty and that action between businesses and individuals would always fall under the protection of RFRA. Absence of such language was the reason that New Mexico’s law was ruled inapplicable to a suit by a photographer asking for protection of her right to reject business that required her participation in a ceremony for a lesbian couple. Activists for the LGBTQ community claim that to refuse to participate in this ceremony is a refusal to serve the couple; RFRA recognizes that the photographer was not refusing service to the couple; she was refusing to sin against God by condoning and participating in actions that are sinful, and the consequence was that she could not provide the service.

Someone who believes the Bible’s definition of marriage is the union of one man and one woman will suffer a burden on conscience when the government asserts a compelling interest in preventing what is popularly labeled “discrimination” in a way that requires participation in ceremonies that legitimize actions the Bible calls “sin.” However, RFRA does not provide any guarantee that federal or state law will be modified to fit the religious convictions of anyone. RFRA protection is initiated when a law is being implemented or enforced and compliance requires a citizen to sacrifice religious convictions.

The existence of RFRA and First Amendment protections does not require that any law conform to anyone’s religious convictions.

Many who fuss about RFRA act as if RFRA had established a church. RFRA does no such thing, at either the federal or the state level. In fact, RFRA was written in response to a religious problem rooted in non-Christian religious practice. RFRA is not about any church or any particular religion. RFRA came into being because the federal government was exerting tyranny over people who were committed to faithful living as their religion guided them. RFRA does not require anyone else to join in the worship of a particular god. RFRA does not require anyone else to worship any god. RFRA simply protects people who do worship a god from being oppressed and tyrannized.

However, even though the Constitution prohibits Congress from establishing a religion that every citizen must adopt, nothing prevents Congress from enacting laws that embody the moral principles taught by any religion. Many “pro-choice” advocates behave as if the protection of unborn life is something only Christians believe in, and when they start bandying about their arguments against “white privilege” and “Christian privilege,” the unborn baby becomes a tool for asserting separation of church and state. The “pro-choice” advocates act as if ending abortion on demand is a tool of “white privilege” and “Christian privilege” that oppresses minorities and women.

This complaint does not stand up to scrutiny, because the motivation to protect unborn life is rooted in a worldview that respects human life from the moment of conception. This view is profoundly everything but oppression. This view respects human life long before the human in question is able to defend himself. This view recognizes the full humanity of every human being, before and after birth. This view has no political agenda, no goal of increasing or decreasing the numbers of humans. This view simply respects humanity. The drive to pass a law that forbids abortion on demand has the purpose of respecting every human life, not declaring some humans deserve protection, because they are born, while other humans do not deserve protection, because they have not yet been born.

The same arguments arise in the context of the marriage question. Advocates for the LGBTQ community argue that hatred motivates Christian refusal to bake cakes, take photographs, or take any part in a ceremony for the marriage of two people of the same gender. This is why they work so hard to defeat RFRA. They believe, without reading the text or knowing the Constitution, that RFRA legalizes the rejection of business services to innocent people who simply want to marry the object of their love. RFRA does no such thing. RFRA does not invalidate the laws that prohibit mindless, hateful discrimination against people.

RFRA does not prohibit, or even discourage, a baker from baking cakes and selling them to people who believe all sorts of things. In fact, RFRA does not encourage the baker to ask people the kind of question that might reveal the deeply rooted moral convictions of a customer. The allegation that RFRA supports discrimination against people because of their sexual orientation or their gender identity implies that because of RFRA, bakers do inquire about these things before they let someone through the door to their shop. This allegation is ridiculous. A baker who interviewed everyone at the door would have no customers of any persuasion. He would not need to be punished, because he would be out of business before he ever got started.

In fact, no baker, Christian or otherwise, filters his customers in order to weed out homosexuals or transgenders. In every case brought against Christian merchants who refused to participate in a ceremony to legitimize the “marriage” of same-gender partners, the history of the case reveals that these merchants and providers deal with people of all genders and all sexual orientations daily. Mostly they do not know or care about these details of people’s lives.

How did their moral convictions come to conflict with their ability to provide goods and services? The customer made a request they could not fulfill. Customers do that all the time. If a customer wants a wedding cake on Thursday at noon and the baker already has work scheduled for that whole day, the baker will not be able to provide the cake. It will not matter if the parties are the same or different genders. If a customer demands a cake with a cake topper featuring a swan, and the baker has no such topper and cannot obtain it in time for the event featuring this cake, the baker will not be able to provide the service. The gender identity of the honored guest simply will not matter.

The situation is very different if the customer says, “I want a wedding cake decorated with a topper featuring two women and live flowers that form a rainbow flag. I want you to bring it to the wedding and keep the live flowers protected until right before the cake is served. I want you to decorate the cake in the presence of the couple and the guests. After the rainbow flag is done, write, “Gay Marriage” and the HRC Equal sign under it.” This request is very different. The customer is requiring the presence of the baker at a celebration, and the customer is expecting the baker to use his artistic gifts in service to this celebration. If the baker believes that his gift to be a baker is the blessing of God from the moment of he was conceived, a gift nourished in obedient submission to the will of God to be used in service to God, he cannot use that gift to bless and legitimize a union which he believes with deep conviction to be sinful and utterly rebellious toward God. This baker will decline the order, but not because he hates the customer or the customer’s plans. He is probably grieving for this customer, praying that somehow this customer will be touched by the power of God and be transformed by it. The baker must decline the order out of conviction that it sin for him to participate in and promote sin, but he may do it with a very heavy heart for the people so deceived and seduced by Satan that they must engage in a fake wedding. He does not hate them. He hurts for them.

Think of all the people you have known who failed to graduate from high school. No matter the reason for the failure, parents, friends, even neighbors who barely know this child grieve if he does not graduate from high school. They know that the consequences of that failure never stop building. The whole future this child faces is heavy with consequences of a failure to graduate.

A Christian baker, or any other Christian business owner, who must decline business that requires participation in fake wedding ceremonies will feel for the participants in the ceremony the way people feel for a person who never graduates from high school The participants in that ceremony are shutting themselves off from the highest and greatest good gifts God wants to give them. Who wouldn’t mourn for them? Nevertheless, the mournful feeling that accompanies news of such behavior is part of the reason Christian businesses decline such business. I hope every business owner who must decline such business makes sure that the customer knows he or she can come back any time and talk about the way things are working out. I hope every Christian baker or photographer or other business owner who must decline business that involves participation in such a ceremony lets the customer know that he or she is still a loved friend. Friends need not stop being friends when they disagree over social mores.

I do pray fervently that the culture stops treating Christian faith convictions as the frivolous acts of people who have their feelings hurt because the culture disagrees with them.

RFRA is a law that educates the culture while protecting the God-given right for people to choose whom they will serve with their whole hearts and lives. Tell your friends of every persuasion that RFRA is good for everyone.