‘Religious Liberty’ Bills Fail in States, But What About the Courts?

State laws in Arizona, Kansas, Ohio, and elsewhere that would enshrine discrimination in the name of "religious liberty" have faced political setbacks, but a legal victory isn't certain yet.

State laws in Arizona, Kansas, Ohio, and elsewhere that would enshrine discrimination in the name of "religious liberty" have faced political setbacks, but a legal victory isn't certain yet. Gavel Rosary via Shutterstock

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

This week, after much deliberation, Republican Arizona Gov. Jan Brewer vetoed a so-called religious freedom bill that would have allowed secular, for-profit businesses in the state to use religion as an excuse to legally refuse service to anyone. The bill was largely seen as a way for social conservatives who are freaked out over rapidly advancing marriage equality to legalize discrimination at the state level as a way to try and avoid having to deal with equality at the federal level. But despite the fact that Gov. Jan Brewer vetoed the measure, it’s still perfectly legal to engage in some forms of discrimination in Arizona and at least 17 other states as well. So what, then, was all the fuss about with the Arizona bill and Brewer’s veto? The answer lies in part in the political and legal challenges to the Affordable Care Act.

In many ways, this latest battle over discriminating in the name of religious liberty started more than 20 years ago with the 1990 Supreme Court decision Employment Division, Department of Human Resources of Oregon v. Smith. That case involved two members of a Native American church who were fired from their jobs as drug counselors after illegally using peyote; they were subsequently denied unemployment compensation by the State of Oregon. They challenged their firing and the denial of unemployment benefits by arguing prohibitions on peyote use violated their religious liberty rights. The Supreme Court disagreed. In the opinion, written by Justice Antonin Scalia, the Court held that a person’s religious beliefs can’t be used as a shield to prevent them from abiding by laws that are neutral and not designed to restrict religious freedom. To do so, the Court wrote, would “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.”

While the Court’s conclusion may have been logical enough, the decision was seen by social conservatives as a blow to religious liberty rights, since the Court concluded that the Smith decision meant that the free exercise clause could be used only against laws that specifically target religion. In response, Congress passed the Religious Freedom Restoration Act (RFRA), a federal law designed to ensure that any laws that potentially burden the free exercise of religious rights—not just those that specifically target religion and religious practices—be reviewed by courts under the “strict scrutiny” standard.

This strict scrutiny standard is the toughest constitutional standard courts can apply to government conduct that affects constitutional rights. And while the Supreme Court, in City of Boerne v. Flores, would later strike down the RFRA as applying to state or localities, on the grounds that Congress had exceeded its authority under the 14th Amendment in trying to make it apply beyond the federal government, the decision left in place RFRA at the federal level and opened the door for a myriad of state-level mini-RFRA’s to pass. And pass they did. Within three years of the Flores decision, 11 states, including Arizona, had passed their own versions of the RFRA.

Arizona’s original RFRA covers individuals and religious entities, such as churches, but the version vetoed by Gov. Brewer would have expanded those protections to other organizations, like corporations, and would have made the state RFRA applicable in private litigation between persons, like the bakers who are refusing to bake cakes for same-sex couples. Specifically, the Arizona bill looked to expand that state’s RFRA by changing the definition of “person” entitled to religious exemption from complying with state anti-discrimination laws. Importantly, the bill never used the words “gay” or “sexual orientation” in limiting the basis for business owners to discriminate because of their religious objections. That means the law would have been able to compromise existing state civil rights protections, including those based on race, sex, ability, and others—which was part of the point.

If Arizona’s law sounds familiar, that’s because the arguments at its core are nearly identical to those currently before the Supreme Court in the Hobby Lobby and Conestoga Wood Specialties cases challenging the contraception mandate in the Affordable Care Act on the grounds that it violates the federal Religious Freedom Restoration Act.

“The nation is just getting a peek at this extreme agenda designed to give corporations a license to discriminate, and they don’t like what they see,” said Cecile Richards, president of Planned Parenthood Action Fund, in a statement. “What’s clear from the Arizona debate is that this is not a fight about religious liberties. It is about corporations who want a license to discriminate against people by denying services, taking away birth control coverage, and blocking access to health care.”

Tony Perkins, president of the conservative Family Research Council, confirmed Richards’ point in his own statement following Brewer’s veto of the bill. “Under the amended Religious Freedom Restoration Act, what was legislative intent (but ignored by certain courts) would have been clear: individuals do not have to trade their religious freedom for entrance into public commerce,” he said. “In other words, whether it’s a wedding vendor, whose orthodox Christian faith will not allow her to affirm same-sex ‘marriage,’ or a business like Hobby Lobby or Conestoga Wood, whose faith bars them from providing drugs that have the potential to end a pregnancy, the provisions of RFRA would apply.”

As both the Arizona law and the legal challenges to the contraception mandate under RFRA make clear, these cases and bills have very little to do with religious liberty and everything to do with expanding corporate power and advancing Christian patriarchy. In North Dakota, for example, social conservatives tried and failed to pass Measure 3, a ballot initiative that critics warned would have made it more difficult to prosecute abusers by allowing those accused of domestic violence to claim that it was their “sincerely held religious belief” that they should be allowed to “discipline their wife and children as they see fit,” and could undermine everything from child protection laws to the minimum wage.

Which leads us back to the Supreme Court and the oral arguments in March in the Hobby Lobby and Conestoga cases. One of the goals of those challenging the mandate in those cases is to get the Supreme Court to rule that for-profit companies should be considered “people” under the RFRA and thus covered by its protections the same way it protects individuals. This is the expansion religious conservatives sought to the Arizona law, and which Brewer vetoed after significant public and corporate pressure to do so. But what about the Roberts Court? As Cecile Richards noted, “If Gov. Jan Brewer can see that this way is too extreme, surely the U.S. Supreme Court can, too.”

That sounds like a fair enough conclusion: that the Roberts Court should be at least as reasonable as the very conservative Gov. Brewer. The problem with that conclusion, though, is that when it comes to expanding corporate power at the expense of employees, the Roberts Court knows no bounds. At every opportunity—whether making it harder for employees to sue for harassment or equal pay—the conservative majority on the Roberts Court has sided with employers. It’s hard to see them passing up yet another opportunity to do so in the Hobby Lobby and Conestoga cases.

But it’s also hard not to grasp the political reality of Brewer’s veto, that the veto of SB 1062, along with the defeat of similar measures in Ohio and Kansas, is a genuine victory. The public is largely not buying the discrimination in the name of religious liberty argument—at least when the case is framed as a gay rights issue. Even so, as of the publication of this piece, Missouri, Mississippi, Oklahoma, and Georgia either had or were considering similar bills, and at last count religious conservatives had filed more than 100 lawsuits challenging the contraception mandate on religious liberty grounds. And let’s not forget the 18 mini-RFRA’s already on the books.

That means we’re reaching another apex of sorts in the battle for equality—another point where the politics of religious conservatism clashes with the evolution of our constitutional promises of equal treatment under the law. Gov. Brewer’s veto and the unstoppable advance of marriage equality show the political battle is largely over. This summer, when the Roberts Court issues its decision in the Hobby Lobby and Conestoga cases, we’ll see about the legal battle.