Perils of RFRA: How “extreme” religious liberty violates the no-harm rule
Why Colorado’s HB 16-1180 is fraught with damaging consequences
**NOTE: On March 16, 2016 House Bill 1180 was postponed indefinitely.
By Ken Burrows
In the historical archives of church-state issues in America, no line is quoted more often than that in Thomas Jefferson’s reply to the Danbury Baptists in 1802 in which he endorsed “building a wall of separation between church and state.” However, a less quoted line in that same letter is becoming more and more relevant to church-state controversies today. It is Jefferson’s observation, leading into his “wall” conclusion, that “the legislative powers of government reach actions only, and not opinions.”
Jefferson of course meant the government can never restrict what a person religiously believes (“opinions”), a liberty that virtually no American challenges. But at the same time he affirmed that government power does legitimately reach actions. What is happening with increasing frequency today are efforts to give freedom of belief an unfettered license for freedom of action—to the point of allowing the infliction of harmful actions on others while invoking religious belief as justification.
Colorado has been among several states enacting, or at least proposing, “freedom of religion” legislation that would result in harm to others. The most recent is House Bill 16-1180, introduced in February, a measure titled the “Colorado Freedom of Conscience Protection Act.” While beguilingly labeled as conscience protection, it would grant broad license to discriminate in religion’s name. According to Americans United for Separation of Church and State (AU), which closely monitors such legislation, HB 1180 “would create a potential religious exception to every single existing and future state and local law in Colorado,” including laws against child abuse and domestic violence and laws protecting public health. Some specifics on this will be discussed below.
The Burwell / RFRA influence
Such legislative efforts around the nation seek to give broad legal approvals for what are known as “religious freedom exemptions” to abiding by public law and policy. These exemption claims have their genesis in the federal Religious Freedom Restoration Act (RFRA). RFRA says government may not “substantially burden” a person’s exercise of religion unless it furthers a “compelling governmental interest” and is done with the “least restrictive means” possible. Discussed in further detail below, RFRA was the federal law on which the Supreme Court based its 2014 decision in Burwell v. Hobby Lobby, which said a private business owner’s religious beliefs granted it an exemption from providing employees the contraceptive insurance coverage required under the Affordable Care Act.
In the wake of that Burwell ruling, state-level RFRA measures are proliferating. They gained even more steam as a reaction to the 2015 Supreme Court’s ruling in Obergefell v. Hodges, guaranteeing the right to same-sex marriage. State RFRA legislation typically embraces a nearly unlimited deference to religious belief in granting the aforementioned “religious freedom exemptions.” Colorado’s proposal is no exception.
But such an imbalance ignores Jefferson’s common-sense observation that legislative powers can and must reach actions to ensure a functioning society and safeguard certain rights and principles. This was true when he said it 214 years ago and is still true today. It hearkens back to the “no-harm rule,” a concept promoted by John Locke in the 17th century as being indispensable to ordered liberty. It was among many of Locke’s ideas that influenced the Framers.
Jefferson famously said that while freedom of belief is sacrosanct, the limiting powers of government do extend to acts that are “injurious to others.” Specifically with regard to religious belief, he wrote to James Madison in 1788 that including freedom of religious belief in a bill of rights “does not give impunity” to wrongful acts dictated by religion. For his part, Madison, considered to be the father of the Constitution, recognized unrestricted freedom of belief but was wary of abuses of power if religion were in some way backed by the state. When this happens, he said, the practice “…tend[s] to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”
But in the 21st century we now witness more and more efforts to exempt religiously motivated dissenters from adhering to laws citizens in general must follow, asking the state to bless such exemptions in deference to religion, even when they cause harm. We are indeed seeing a proliferation of “mischievous projects” that are “injurious to others.”
Too much liberty
One person who has examined this trend in depth is former Supreme Court justice clerk, religious issues litigator, and noted church-state scholar Marci A. Hamilton. She is a leading spokesperson on the dangers of exaggerating the meaning of “religious freedom.” She sees several of today’s religious freedom exemption claims as extreme, such as allowing discrimination against gays and lesbians in business or housing, permitting medical neglect, withholding health and social services, or engaging in other biases and risks that impact others, all the while claiming a “religious freedom” right to do so.
Hamilton points out that James Madison himself held a view that there can be too much liberty, something the culture in his day referred to as “licentiousness,” defined not as personal immorality but as a generic disregard for rules or legal restraint. So it was that many early state constitutions placed limits on how citizens exercised their religion. This early position of the Founders is exemplified by Rev. John Witherspoon, a signer of the Declaration of Independence, who said in 1805: “[The] true notion of liberty is the prevalence of law and order, and the security of individuals.” This means, he said, that one objective of civil laws is “limiting citizens in the exercise of their rights, so that they may not be injurious to one another, but that the public good may be promoted.” Witherspoon was also a member of the Continental Congress who trained the Framers on principles of governance. Hamilton says this documented early thinking proves it is time “to put to rest the pervasive—but misguided—belief that religious liberty at the time of the Framing meant that religious entities were superior to the law.”
HB 1180 broadens the RFRA scope
Colorado’s HB 1180 generally mirrors the language in the federal RFRA but actually goes further. Under the federal law there must be a “substantial burden” on religion for its provisions to be activated. HB 1180 sets the bar lower at, simply, a “burden” on religion, said to occur not just when one’s exercise of religion is denied but also when such exercise is even “indirectly” curtailed. At one point the bill’s language says a person can assert a violation when exercise of religion “has been burdened or is likely to be burdened” [italics added], thus accommodating even speculative burdens and giving still wider deference to religion.
Further, the bill defines “exercise of religion” as the ability to act or refuse to act in a manner “substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of belief.” This elasticizes the definition of “religion” and suggests a person could make a “freedom of religious exercise” claim to justify actions that harm others, even if such exercise is not central to the religion involved. History has shown that under such loose defining, simple prejudice can be dressed up as an individual’s “religious belief.” AU points out that around the country RFRA measures have been used to trump nondiscrimination laws, avoid ethics investigations, thwart access to health clinics, and engage in other harmful acts, and lessening the “burden” threshold facilitates such harm. So too does stretching the definition of “religion.”
Notably, while HB 1180 broadens the interpretations of “burden” and “religion” to increase the scope of deference to religion and widen the harm this can cause, it severely restricts the groups to be protected from such harm. The bill specifically states that one’s guaranteed free exercise of religion “does not include the ability to act or refuse to act based on race or ethnicity.” That’s it: race or ethnicity. This says more about whom the bill is excluding from protection against religiously motivated harm than about whom it is giving a safe haven. It’s no surprise that sexual orientation and gender identity would remain as permissible bases for discrimination, since these groups were obviously among the primary targets of the bill. But the bill would apparently also allow “religious freedom” discrimination based on age, gender, disability status, and—yes—even a different and/or “unapproved” religion.
In what seems a stark nod to the Burwell Hobby Lobby court decision, HB 1180 specifically defines “person” to include “any partnership, corporation, church…or other legal entity.” Apparently, as with Burwell thinking, inanimate and/or manmade entities can once again possess religious beliefs. Which serves to augment the broad deference to religion the bill promotes.
Ginsburg’s “minefield” arrives
Hamilton contends it is Burwell’s overly broad interpretation of RFRA that has spawned the ensuing raft of “religious freedom” exemption claims that fail to consider the harm these exemptions would bring to others. (Justice Ruth Bader Ginsburg’s dissenting comment in Burwell has proved prophetic: “The Court, I fear, has ventured into a minefield.”) How did the original RFRA come about? It was an outgrowth of a 1990 Supreme Court ruling that did attempt to affirm reasonable boundaries on religious practice (not religious belief). Boundaries even Justice Antonin Scalia, perhaps the most religion-friendly justice the Court had known in modern times, agreed with. The case was Employment Division v. Smith, in which two Native American drug counselors contested their denial of unemployment benefits after being fired from their job for illegal use of peyote in what they said was a religious ritual. The Court ruled against plaintiffs, saying religious motivation does not automatically place individuals beyond the reach of a generally applicable law.
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” the decision read. The Court said religious exemptions cannot “in effect permit every citizen to become a law unto himself.” Scalia specifically warned that allowing people to pick and choose which laws they would follow on the basis of religion “would be courting anarchy,” and he cautioned that legislating those kinds of exemptions could endanger numerous laws, including child neglect laws, child labor laws, nondiscrimination laws, and military service laws. Yet the language of HB 1180 specifically criticizes the Smith precedent by name, saying a more “sensible balance” between religious freedom and governmental interests is needed. But “balance” is what is missing in HB 1180, as it tilts markedly toward allowing a nearly unlimited concept of “religious freedom” to trump virtually any governmental/public interest or any reasonable effort to prevent religiously motivated harm to others.
Departing from precedent
The Smith ruling hit many nerves. Religious and even civil liberties forces “wrongly responded” and “overreacted” to it, Hamilton contends, and launched a mission to win protection for a sort of extreme religious right to be exempted from generally applicable laws. The result was the RFRA language that permitted pretty much all exemptions when a law was a “substantial burden” on religious exercise and the government could not show a “compelling interest” being served through the law by the “least restrictive” means possible. These criteria, referred to legally as “strict scrutiny,” are what won Hobby Lobby Stores its religious exemption to the Affordable Care Act’s requirement for contraceptive coverage, with the business owners arguing this would burden their exercise of religious belief. The matter of the harm this caused Hobby Lobby employees (including, of course, many who did not share the employer’s religion) was essentially ignored.
RFRA represented a change from preceding criteria, which held that when a law is neutral (i.e., not discriminatory) and generally applicable (i.e., it applies equally to everyone who does the same thing), then a “religious freedom” claim does not relieve one of following such a law. In fact, Hamilton says, calling RFRA “freedom restoration” was disingenuous (though also a PR masterstroke) since it did not “restore” anything but rather introduced “a new standard never before employed by the Supreme Court in a free exercise case.” I.e., it carved new ground on defining religious freedom. And with RFRA the balance between freedom of belief and freedom of action was being starkly tilted toward the religious believer, with comparatively scant attention paid to the no-harm principle.
“Congress did not do its homework” on RFRA, Hamilton argues. For one thing, it bought the lobbyists’ false notion that it was already standard free exercise doctrine to subject every law to strict scrutiny. It also did not look closely enough to perceive RFRA’s destructive impacts. She said no one discussed how RFRA might apply, for instance, to cases of clergy sex abuse or religiously motivated medical neglect. There was no testimony whether for-profit companies could evade legal obligations to employees. No discussion of how RFRA might facilitate discrimination based on sexual orientation or gender. No consideration if employers could limit medical benefits according to religious belief. And “there was certainly no discussion of the fact that a number of religious groups hoped to use it [RFRA] to trump the Fair Housing Act so as to keep renters whose beliefs differed from theirs from moving into their apartment buildings, particularly if they were single mothers, unmarried couples, or same-sex couples.” In fact, argues Hamilton, the main agenda behind the original RFRA had nothing to do with religious use of peyote or, strictly speaking, religious practice at all, but rather had to do with the fact that conservative religionists were losing the fight against fair housing laws.
RFRA was seductive, but overreaching
“RFRA was built on propaganda…sold on propaganda, and… perpetuated via propaganda,” Hamilton says. It sounded reasonable, having a nearly Mom-and-apple-pie character. Who would not be for more religious freedom? As proof of its seductiveness, it enjoyed the support of virtually every major religious group in the country plus such diverse factions as the ACLU, Americans United for Separation of Church and State, and People for the American Way. (Many organizations have since admitted their support was embarrassingly narrow-sighted and wrong.) Both Ted Kennedy and Orrin Hatch were for it. President Bill Clinton said RFRA showed that the legislative process can result in “miracles.” (Less well known, Hamilton points out, RFRA also had the support of such nefarious actors as the Ku Klux Klan, World Church of the Creator, and a Berkeley-based child sex cult.)
The original RFRA did eventually prove to be something of an overreach. In a landmark case defining congressional power, City of Boerne v. Flores (1997), the Supreme Court said RFRA changed the meaning of the free exercise clause and trampled on principles of federalism as applied to the states. (Re the latter, the Court had for several decades up to this point allowed Congress to breach the limits of its power vis-à-vis the states, severely weakening federalism. The Court used this case in part to reverse that trend.) In Boerne the Court had to address what power Congress holds to expand rights of religious liberty against either the federal or state governments. It said Congress did not in fact have the power to increase constitutional rights at will, and RFRA violated the separation of powers.
“Congress does not enforce a constitutional right by changing what the right is,” the Court said. Congress had in effect imposed a new interpretation of religious freedom, making RFRA a super-statute that trumps all other law. Hamilton argues (as did many other critics) it was tantamount to establishing a new constitutional amendment while skirting the rigorous review and approval process one requires. In the process it placed religious entities above the law and elevated religious beliefs above citizen rights.
Boerne rejected the notion that Congress could assume these powers as applied to the states but allowed RFRA to continue to apply to federal law. Instead of repealing RFRA, which Hamilton said would have been the right action to take, Congress amended it in 2000 to apply only to federal law. So the federal RFRA remains, and meanwhile some 20+ states have enacted their own RFRA’s with varying breadth of language as far as who and what can be exempt from generally applicable laws based on a religious freedom claim. Even Indiana and Kentucky, which have had widely publicized problems with faith-based discrimination, are said to be pressing ahead in 2016 with potentially even stronger RFRA-like measures. Some legislators in Colorado seek to jump on this bandwagon with HB 1180, regardless of the harm that would come to thousands of citizens if they were to succeed.
Accommodation that harms too many
Regardless of the overall fluid nature of RFRA legislation nationally, the outcome as Hamilton sees it remains consistently troubling: “Religious exemptions granted without thought for persons harmed…religious accommodation that yields too much to the believer and harms too many affected by the believers’ conduct.”
What are some of these harms? Hamilton enumerates several in her 2014 book God vs. the Gavel: The Perils of Extreme Religious Liberty. (This book is the source for much of the material in this document.) A few examples:
- The Catholic Church has claimed, successfully, a religious freedom right to shield from discovery its files containing details of priest pedophilia.
- Jehovah’s Witnesses won a First Amendment claim that they had no duty to protect children from abuse as long as actions were within their religious freedom right to “decide matters of faith and doctrine.”
- Religious defendants in multiple states have successfully argued that applying “neutral principles of law” to charges of child abuse would require inquiry into defendants’ beliefs, and this is forbidden by their religious freedom.
- Some 30 states have exemptions for religious parents from medical neglect laws, even though children sometimes die due to such neglect.
- A Minnesota state supreme court rejected punitive damages when a Christian Scientist mother allowed her son to die of untreated diabetes, saying this would risk intruding upon the “forbidden field” of religious freedom.
- Judges have ruled that devout Sikh students could not be barred from carrying religiously ceremonial kirpan knives in schools, even though they are potentially dangerous and otherwise violate school safety rules.
- The well known 1972 Wisconsin v. Yoder case gave a religious exemption to compulsory education laws by permitting Amish parents to remove children from school after age 14, thus giving (some say unconstitutionally) selective government support to a faith lifestyle while also showing preference for a potentially deficient agrarian education in a technological era.
- The Religious Land Use and Institutionalized Persons Act (RLUIPA), a quasi-offspring of RFRA that bestows extreme liberty for religious landowners, effectively directs courts to treat land-use laws applied to religious entities as presumptively unconstitutional. This shifts the balance of power in residential neighborhoods to religious landowners at the expense of the residential quality of the neighborhood, making homeowners second-class citizens to their religious neighbors.
- An appeals court in California gave a landlord an exemption from a fair housing claim, saying free exercise of religion by the landlord was a substantially greater interest than eradicating discrimination against unmarried couples in housing.
After examining HB 1180, AU concluded the following scenarios would be feasible under such a law in Colorado:
- A religious employer could ask for an exemption from employment discrimination law and fire a woman who remarried after divorce or who was pregnant and unmarried.
- A healthcare worker could seek approval to refuse furnishing certain physician-prescribed medications, such as contraceptives.
- A mental health worker might claim state-required licensing violates her religious beliefs.
- The owner of a business serving the general public could claim a religious freedom right to refuse service to customers his faith disapproves of, such as gays and lesbians, humanists, atheists, or even a member of a “contrary” faith.
- Healthcare workers could cite religious beliefs as reason to refuse to give patients certain procedures such as blood transfusions, in vitro fertilization, vaccinations, or psychiatric care.
The list goes on, but suffice it to say the no-harm rule is noticeably inoperative in many instances where extreme religious freedom rules the day. As Hamilton points out, religious entities may have begun by striving to protect constitutional doctrines mandating equal treatment, but they now have gone for more: guarantees beyond equality and also the privilege to trump the law. She adds that “To the extent that the United States has sublimated the potential risks of religious entities, it has sold out its most vulnerable.”
Meant as a shield, not a sword
Such “extreme liberty” exemptions inevitably breach the wall separating church and state, preventing the state from defending the civil rights of citizens against religious assault. Prior to Burwell, RFRA was not generally seen as allowing active discrimination based on religion. The Secular Coalition for America reported last year that legislators at a hearing on RFRA emphasized the law was meant “to protect all, not favor some at others’ expense” and was intended to be a shield, not a sword. Justice Ginsburg addressed this in her Burwell dissent by noting: “No prior decision under RFRA allows a religion-based exemption when the accommodation would be harmful to others.”
In an amicus brief submitted for Burwell by the Freedom from Religion Foundation (FFRF), the organization argued that RFRA unconstitutionally elevates religious beliefs above the rights of citizens. When FFRF criticized the Burwell ruling in a New York Times ad, even the conservative Wall Street Journal gave them credit for correctly noting that Burwell was based not on the Constitution but on RFRA and for drawing a “logical conclusion” that Congress should repeal RFRA.
How have we arrived at the circumstances we now face? In the Supreme Court’s first-ever free exercise case, Reynolds v. United States in 1878, the Court articulated clearly that the absolute freedom of conscience does not extend to absolute freedom of conduct. An excerpt from the decision reads: “Can a man excuse his practices … because of his religious belief? [To] permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.” As mentioned above, 112 years later the Court in Smith issued virtually the same caution.
Assuming religious good while ignoring religious harm
We are now another quarter century along and willingly courting the damage and dangers our legal history warned us of. Why? Hamilton attributes our predicament in large measure to two factors: 1) a naïve assumption that religious entities and their actions are invariably beneficent and therefore good for society, and 2) abandonment of no-harm principles in deference to religious belief.
“Every right is situated within a larger constitutional structure,” she writes. “Republican representative democracy—not to mention much theology and moral philosophy from John Locke to John Stuart Mill—rests on the assumption that no individual has the right to harm others. … When [we] divorce rights from their structural context, [we] treat rights as a pure libertarian would: without reference to the rights holders’ obligations to society.”
“Free exercise theories too often have focused on religious entities by themselves, as though their well-being or their liberty alone is an appropriate proxy for the general public good. This focus…is myopic and antidemocratic. … The widespread cultural presupposition that religion is inherently and always good for society is naïve and dangerous. … It is a simple fact that religious entities are not invariably beneficial.”
“The constitutionally relevant question is not what is best for any church—indeed that question is forbidden by the neutrality principle underlying the Establishment Clause. The proper question instead is whether the liberty accorded believers is consonant with the no-harm principle.”
The danger of abusing liberty
Hamilton goes on to note: “The Establishment Clause is testimony to the Founding generation’s rational fear of overweening, concentrated religious power and of the mischief that can be fostered by religious institutions, particularly when they are sovereign. It cannot be, as some argue, a rule solely intended to protect religious entities.”
Recalling the principles that were dominant among the Framers, it is clear that we are at risk of straying from the path they were on. For while they esteemed religious freedom, they did not take that esteem to the extreme of permitting it to injure others. They adhered to the no-harm rule.
What is the answer to these dangers of allowing, even endorsing, faith-based discrimination and other exemptions from generally applicable laws? Hamilton says we should return to classic pre-RFRA thinking, which is that if a law is neutral and applies to everyone equally, “religious freedom” does not automatically exempt one from it. Then, if and when there is a request for a religious exemption, one of the key questions to ask is who will be harmed by it. It should not just be assumed the exemption is justified or will be benign. Additionally, the process of evaluating exemption claims should be patient, with such claims thoroughly aired and fully debated.
Thomas Jefferson in his Virginia Statute for Religious Freedom said using religion to withhold another individual’s rights “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” James Madison once observed: “Liberty may be endangered by the abuse of liberty.”
The extremes of religious liberty we are seeing under RFRA in its various forms are proving him right. If Colorado legislators value liberty in the full sense of the word, and especially if they respect the no-harm rule as it applies equally to all citizens, they will not go down the perilous RFRA path.