Myths have permeated the media’s coverage of the Religious Freedom Restoration Act enacted in Indiana. (I have no position on such legislation, which I previously discussed at length at this link.)
As the Washington Examiner notes, “The federal version of Indiana’s bill, which was signed into law in 1993 by Democratic President Bill Clinton, prohibits the federal government from substantially burdening a person’s free exercise of their religion — except in instances where the government can prove it has a ‘compelling interest’ and can impose the burden in the least-restrictive way possible.”
Press coverage has falsely implied that such religious-freedom legislation gives religious businesses a broad right to discriminate against gays and lesbians, when in fact no such right has ever been recognized under the similar legislation that already exists at the federal level and in many states. As the Examiner points out, “The words ‘gay,’ ‘lesbian’ and ‘sexual orientation’ are nowhere to be found in” its “language,” and “no religious freedom bill has been used successfully to defend discrimination against members of the LGBT community in the 22 years since Congress and states began adopting such laws.” This is not because of the novelty or rarity of such laws: As The Washington Post’s Hunter Schwarz notes, many states have their own Religious Freedom Restoration Act, and “Indiana is actually … one of 20 states with a version of the Religious Freedom Restoration Act.” Instead, religious defenses to gay-rights claims tend to fail because the court finds a “compelling interest” justifying regulation, or finds no “substantial burden” on the business owner, which illustrates the limited reach of these religious freedom statutes as applied to discrimination claims (and also courts’ general hostility to religious exemptions, even in the rare circumstances when they should be allowed).
In reporting on the Indiana legislation, many media sources have erroneously suggested that it is somehow paves new ground in giving rights to businesses or corporations (as opposed to individuals) and in allowing religious freedom to be asserted as a defense to a lawsuit by a private person (rather than just government prosecutions or enforcement actions).
But, in fact, there is already a Religious Freedom Restoration Act at the federal level, which is generally interpreted as doing just that. As Washington Post fact-checker Glenn Kessler has observed, it has already been interpreted to apply as a defense in lawsuits brought by private persons, by most (but not all) of the federal appeals courts that have considered the question, including “The U.S. Courts of Appeals for the 2nd, 8th, 9th and D.C. Circuits.” (I have previously explained why businesses should be able to assert constitutional and other rights as a defense to lawsuits by private people at this link.) Thus, another reporter was mistaken to write earlier that Indiana’s law is “fundamentally different” from the “federal” RFRA, which “protects only individuals seeking relief from government intrusions on their religious beliefs, while “[t]he Indiana law and others like it also apply to disputes between private parties.” In reality, Indiana’s law merely makes explicit what was already implicit in the federal law, as commentators like Reason’s Jacob Sullum and law professor Josh Blackman have observed.
The media have also suggested it is somehow radical to give rights to businesses (as opposed to individuals). But it makes little sense to deny rights to an association of persons, such as a corporation, since such a denial would allow the government to effectively use the corporate form to take away the rights of real people. The Supreme Court’s Hobby Lobby and Gonzales decisions, like the great majority of prior court rulings, allowed corporations to rely on the federal Religious Freedom Restoration Act. I have previously explained why corporations logically have rights at this link, noting that corporations also have rights under international human-rights accords, such as the European Convention on Human Rights.
There is nothing novel about a corporation having constitutional or other rights: The Supreme Court first recognized such rights in ruling in favor of Dartmouth College, an incorporated entity, in its decision two centuries ago interpreting the Constitution’s Contracts Clause, in Dartmouth College v. Woodward (1819).
The idea that rights should not apply against private lawsuits is foreign to our constitutional tradition. For example, the Supreme Court has repeatedly applied the First Amendment as a defense to lawsuits by private parties over speech, even when the speech is hateful and hurtful. See Snyder v. Phelps (2011) (tort of intentional infliction of emotional distress could not constitutionally be applied to protest speech by bigoted homophobic church); Hustler v. Falwell, 485 U.S. 46 (1988) (damages could not be awarded in private lawsuit over parody demeaning a famous religious figure); New York Times v. Sullivan, 376 U.S. 254 (1964) (defamation damage award was unconstitutional when it was based on speech that was not recklessly false).
The Supreme Court has also recognized the First Amendment right of freedom of expressive association as a defense in ruling against a lawsuit brought against the Boy Scouts under the gay-rights provisions of New Jersey’s Law Against Discrimination. See Boy Scouts of America v. Dale, 530 U.S. 640 (2000). The notion that the Constitution limits even private lawsuits is not a novel one, but an understanding that reaches back to the era of the Founding Fathers, as UCLA law professor Eugene Volokh found in his research, citing court rulings such as Harris v. Huntington, 2 Tyl. 129 (Vt. 1802).
While Religious Freedom Restoration Acts have not been successfully relied upon to challenge state gay-rights laws or discriminate against gay people, it may be that they could successfully be used by regulated entities to challenge other types of anti-discrimination regulations that burden their religious expression, such as agency rules restricting religion-based hiring by religious organizations (federal civil-rights laws and state gay-rights laws typically do not ban religion-based hiring by religious organizations, although agency regulations sometimes attempt to do so).
For example, in Lutheran Church—Missouri Synod v. FCC (1998), the FCC attempted to regulate a religious broadcaster’s use of religion in selecting people who would speak for it on the air, which the broadcaster argued violated its rights under both RFRA and the Free Exercise Clause. The appeals court sidestepped the issue, by junking the FCC’s equal-employment opportunity rules because they also contained unconstitutional racial and gender preferences, and remanding the issue back to the FCC to determine whether to continue to regulate religion-based hiring in any future EEO rules adopted by the agency. But the court did not hide its skepticism that such “broad employment regulation” could be justified by an agency’s “interest in broadcast diversity” when the religion-based hiring in question was not banned by any generally-applicable civil-rights law applying to society generally.
It is not RFRA, but the First Amendment itself, that has occasionally been relied upon to successfully block discrimination lawsuits, such as in the Supreme Court’s Boys Scouts v. Dale decision, which relied on freedom of expressive association to quash a sexual-orientation discrimination lawsuit; its Hosanna-Tabor decision, which relied on the First Amendment to block a lawsuit against a religious school; and the Ninth Circuit Court of Appeals’ Rodriguez v. Maricopa decision, which relied on the First Amendment to quash a racial harassment lawsuit. When a New Mexico wedding photographer objected to filming the civil-commitment ceremony of a gay couple, her strongest defense was rooted in the First Amendment, not RFRA (although even this defense was wrongly rejected by the New Mexico Supreme Court, in a ruling questioned by several First Amendment scholars, such as Professor Volokh).
Conversely, in other contexts, state RFRA’s are in many cases duplicative of other laws. Even in the absence of any state RFRA laws, religious exemptions to zoning or prison rules (like rules banning prisoners from growing a beard) are already sometimes required by a federal law, the Religious Land Use and Institutionalized Persons Act, which applies RFRA-like standards to state prisons and local zoning decisions, but not other state laws or regulations. (The Federal RFRA itself potentially mandates religious exemptions only against the federal government, not the state and local governments). Thus, state RFRAs often have little effect in the real world.
