Not All the Same: Christian Right’s Hobby Lobbyization of State RFRAs

About Frederick Clarkson

Things hit the fan in the wake of the signing of the Indiana Religious Freedom Restoration Act (RFRA) by Governor Mike Pence (R). He and other defenders of the bill argued that it was the same as the other state RFRAs, as well as the federal RFRA signed by President Clinton. Discrimination was not intended, so what was everyone so upset about?

The claim that the bill did not intend to protect discrimination collapsed, as many publications and LGBTQ civil rights activists (such as the Indiana ACLU) quickly proved that discrimination was exactly the intent. The resulting national controversy compelled Indiana to offer “clarifying” legislation.   But it is revealing how important it was to conservatives that the bill not be seen as discriminatory – using false claims about the federal and other state level RFRAs as a cover. But also revealing is their attempt to reinterpret the intentions of the authors of the federal and other state RFRAs.  This is of a piece with the long-term Christian Right campaign to redefine religious liberty in the country in terms favorable to their theocratic vision.

Indiana Governor Mike Pence (R) is joined by Christian Right leaders as he signs the Hobby Lobbyized RFRA into law.

Indiana Governor Mike Pence (R) is joined by Christian Right leaders as he signs the Hobby Lobbyized RFRA into law.

The way they went about it is instructive. Conservative Republican politicians, their apologists (such as New York Times columnist David Brooks), and allied groups suggested that the bills are essentially the same.  Even some Christian Right leaders like Tony Perkins of the Family Research Council bent the truth, claiming that Indiana merely joined “19 other states in aligning themselves with federal religious freedom law.”  (Even though the state-level Christian Right leaders who backed the bill, and stood behind Gov. Pence when he signed it, have been clear about their intentions.)

The Times’ own reporting cited legal scholars, including Columbia Law School professor Katherine Franke, who said that the Indiana is not the same as the federal law or the Illinois state law supported by President Obama when he served in the Illinois State Senate.

“[Franke] and other legal experts said the Indiana law expands the parties who could ask for relief on religious grounds to include a wider range of corporations, if individuals with ‘substantial control’ of the business share the same religious beliefs.

The Indiana measure also grants parties the right to bring legal action to prevent a ‘likely’ burden on religious belief, even before any burden is imposed. And it expands the situations in which the protection could be invoked to include disputes between private parties engaged in lawsuits, even if they do not involve any direct actions by a government agency.”

The fact is that the federal RFRA, and most of the past state RFRAs, apply only to government actions. The original purpose of the legislation was to restore individual religious liberty taken away by the Supreme Court in the case of Employment Division v Smith, which involved Native Americans being denied state unemployment benefits in Oregon because they had been fired for using the illegal drug peyote in traditional religious ceremonies. The Court ruled that they had no legal recourse, so Congress sought to narrowly set a standard essentially reversing the Smith decision.  A later Court ruling limited the reach of the federal RFRA to the actions of the federal government only, hence the beginning of the state level RFRAs.

However, since the Hobby Lobby v. Burwell Supreme Court ruling in 2014, Christian Right agencies like Alliance Defending Freedom, the Becket Fund, the Mormon Church, and their allies at the United States Catholic Conference of Bishops, have pushed state level RFRAs that extend certain provisions to corporations and individuals allowing measures of discrimination in the face of religious claims that to provide services to LGBTQ people violates their consciences.

The Hobby Lobby case, for the first time, granted a private business religious standing under the First Amendment. In that case, the Hobby Lobby chain of craft stores was allowed to claim a religious exemption from providing employees with healthcare insurance covering four kinds of contraceptives, because the company owners believe (medical science not withstanding) that they are abortifacients.

Borrowing language from the federal RFRA, on which the original case filed by The Becket Fund for Religious Liberty was based, Justice Alito, writing for the majority, said the government’s requirement that Hobby Lobby provide this contraceptive coverage imposed a “substantial burden” on their religious liberty, and that there are ways of accomplishing the “compelling government interest” in ensuring that women have access to these drugs, by the “least restrictive means.”  Justice Ginsburg, writing in dissent, was concerned by the potential sweeping implications of the decision. “The court’s expansive notion of corporate personhood,” Ginsburg wrote, “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”

The first of these Hobby Lobbyized RFRAs was passed in Arizona, but was ultimately vetoed by the governor. A similar bill was passed and signed into law in Mississippi, while other such bills have been stalled in other states.

Justice Ginsberg’s concerns are being realized in the efforts to insert Hobby Lobbyized provisions into state RFRAs.  What is curious is that are engaging in an odd and easily refutable historical revisionism in claiming that the Hobby Lobbyized RFRAs was the intention all along—even though the federal RFRA was passed in 1993.

The turning point in the national controversy was probably the debacle on ABC’s This Week with George Stephanopoulos, when Governor Pence repeatedly claimed that the Indiana bill was the same as the others, and refused to say whether or not he supported anti-LGBTQ discrimination.

Pence claimed that the “Religious Freedom Restoration Act was signed into federal law by President Bill Clinton more than 20 years ago. And it lays out a framework for ensuring that a very high level of scrutiny is given any time government action impinges on the religious liberty of any American. After that, some 19 states followed that, adopted that statute. And after last year’s Hobby Lobby case, Indiana properly brought the same version that then state senator Barack Obama voted for in Illinois before our legislature. And I was proud to sign it into law last week.”

The Indianapolis Star reported on April 2nd that Pence’s talking points did not square with the facts. Pence is correct except that the Indiana bill is not the same as the federal RFRA and most of the state RFRA’s – including Illinois – but the post-Hobby Lobby timing is telling. The shorthand for the bill around the legislature was “the Hobby Lobby bill.”

In the wake of the controversy over the Indiana bill, Arkansas changed their proposed RFRA before it was passed to ensure that it could only be invoked in cases where the government is a party, just as in the federal version. While the struggle over the definition of religious freedom is far from over, the battle lines are becoming clearer.

Frederick Clarkson is a senior fellow at Political Research Associates. He co-founded the group blog Talk To Action and authored Eternal Hostility: The Struggle Between Theocracy and Democracy. Follow him on Twitter at @FredClarkson.