Why Shouldn’t States Just Adopt the Federal RFRA?

Because RFRA is now being misused to justify discrimination and deny healthcare.

Although both progressives and conservatives supported RFRA when it was enacted in 1993, much has changed in the ensuing two decades. In the 1990s, the broad coalition supporting RFRA saw it as a way to protect religious liberty after the Supreme Court weakened constitutional protections in Employment Division v. Smith. Since then, RFRA has been exploited to justify discrimination and other harms to third parties, and courts have interpreted the law in ways that its sponsors never intended. RFRA has been misused and misinterpreted so often that many of RFRA’s original supporters now oppose enactment of these laws in the states. Because RFRA means something different today than it did in 1993, states should not adopt laws like the federal RFRA.  

  • Courts Have Changed the Way that RFRA Works: In 2014, the Supreme Court decided Burwell v. Hobby Lobby Stores, holding that a large, for-profit corporation could use RFRA to deny its employees insurance coverage for contraception. This decision alone is reason to oppose passage of a state law that is identical to the federal RFRA—we don’t want similar outcomes in the states. But the decision could have even more far reaching repercussions: the Court interpreted RFRA so broadly that others may try to use the law to undermine access to healthcare, justify discrimination, and threaten public safety. State RFRAs will create similar risks.
  • The Federal RFRA Is Being Invoked to Justify Discrimination in Hiring: In August 2016, a federal court held that a funeral home violated the federal law barring employment discrimination because its dress code resulted in unlawful gender stereotyping. But the court went on to conclude that RFRA gives the funeral home a religious trump card over the federal civil rights law and thus, it could still fire an employee for violating its dress code.

    A federal government policy, based on a troubling 2007 legal memorandum, cites RFRA to grant blanket exemptions to faith-based organizations from federal laws prohibiting hiring discrimination by recipients of federal grants. According to this policy, RFRA allows, for example, a faith-based organization to take taxpayer funds to run a shelter for domestic-violence victims and then refuse to hire qualified applicants to run that program based on their religion. Some are attempting to extend the memo’s reach even further: immediately after President Obama signed an executive order prohibiting federal contractors from discriminating against LGBTQ employees, some cited this memo to argue that RFRA exempts religious groups from this non-discrimination protection. States should not adopt a statute that could lead to similar justifications for discrimination.
  •  There Are Efforts Underway to Use RFRA to Justify Discrimination in Healthcare: More and more entities are trying to use RFRA to trump laws protecting public health and prohibiting discrimination. These arguments have not yet succeeded, but the decision in Hobby Lobby has increased the likelihood that a court will accept them or that a government official will adopt them as public policy.
    • Discrimination Against Certain Patients: In December 2016, a federal judge relied on RFRA to halt the U.S. Department of Health and Human Services from implementing the Affordable Care Act’s protections that bar sex discrimination in the provision of healthcare services. Because of this use of RFRA, women and LGBTQ people may now face discrimination trying to access healthcare.

    • Refusal to Provide Government-Funded Healthcare Services: The U.S. Conference of Catholic Bishops, the National Association of Evangelicals, and others have argued that RFRA allows them to take federal grants to perform government services and then refuse to provide any services to which they object under that grant. Specifically, they have argued that they have the right to take taxpayer money to serve unaccompanied immigrant minors— many of whom have been sexually abused— but refuse to provide these young women information about, referrals for, or access to necessary reproductive healthcare, as is required by law. If accepted, moreover, this argument could be used to withhold virtually any type of healthcare.
  • There Have Been Other Efforts to Use the Federal RFRA to Harm Others: Attempts to use RFRA to harm others extend far and wide. We have seen efforts to use RFRA to refuse counseling to patients in same-sex relationships;1 avoid ethics investigations;2 obstruct criminal investigations;3 shield religious organizations from bankruptcy and financial laws, in the process denying compensation to victims of sexual abuse;4 and thwart access to health clinics.5 In states with RFRAs that mirror the federal RFRA, the statutes have been invoked to avoid licensing requirements6 and resist lawsuits over sexual abuse by clergy members.7 Most of these attempts were unsuccessful, but most were also decided before the Supreme Court decision in Hobby Lobby, which could tip the scales in favor of those misusing RFRA.
  • In the 1990s, Congress Rejected a Second RFRA Law Because it Lacked Nondiscrimination Protections: In the early 1990s, some landlords refused to rent apartments to unmarried couples on religious grounds and brought lawsuits, in some cases under RFRA, to obtain exemptions from laws prohibiting housing discrimination.8 These cases led many groups to reassess their support for RFRA. Indeed, after the Supreme Court held in 1997 that RFRA could not apply to the states, Congress attempted to pass a new bill, the Religious Liberty Protection Act, that would have applied the RFRA standard to the states, but it failed to pass because of concerns that the law would be used to justify discrimination.
  • State RFRAs Are Justified Using Anti-LGBTQ Rhetoric: Today, many who support state RFRAs intend for them to be used to trump non-discrimination laws and laws that ensure access to healthcare. Most new state RFRAs are accompanied by anti-LGBTQ rhetoric. And proponents of these laws refuse to accept amendments that would prevent the laws from allowing discrimination.
  • RFRAs Could Cause Unique Problems at the State Level: Unlike the federal government, the states have sole authority to pass laws in areas such as family law and professional licensing—areas where religious exemptions could be particularly troubling. The states also have the primary authority to pass criminal laws, another area where granting religious exemptions may be especially dangerous.

[1] Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277 (11th Cir. 2012) (arguing that offering counseling to individuals in a same-sex relationship burdened a counselor’s religious exercise).

[2] Doe v. La. Psychiatric Med. Ass'n, No. 96-30232, 1996 WL 670414 (5th Cir. Oct. 28, 1996) (using federal RFRA to challenge an ethics investigation by the Louisiana Psychiatric Medical Association).

[3] In re Grand Jury Empaneling of the Special Grand Jury, 171 F.3d 826 (3d Cir. 1999) (claiming that RFRA prohibits government from compelling grand jury witness to testify against rabbi); United States v. Town of Colo. City, No. 3:12-CV-8123-HRH, 2014 WL 5465104 (D. Ariz. Oct. 28, 2014) (arguing that RFRA prohibited U.S. Department of Justice from compelling witness testimony in civil-rights lawsuit against city); Perez v. Paragon Contractors, Corp., No. 2:13CV00281-DS, 2014 WL 4628572 (D. Utah Sept. 11, 2014) (holding that RFRA prohibited court from compelling witness testimony in child-labor case).

[4] Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. 2015) (arguing that RFRA should shield Archdiocese from bankruptcy laws that would make more funds available to pay victims of sexual abuse).

[5] Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) (challenging Freedom of Access to Clinic Entrances Act under RFRA); Am. Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995) (same); United States v. Weslin, 964 F. Supp. 83 (W.D. Pa. 1997) (same) Planned Parenthood Ass’n of Se. Pa., Inc. v. Walton, 949 F. Supp. 29 (E.D. Pa. 1996) (same).

[6] Youngblood v. Fla. Dep’t of Health, No. 06-11523, 2007 WL 914239 (11th Cir. Mar. 28, 2007) (claiming health inspection of school operated by church violated Florida RFRA); McGlade v. State, 982 So. 2d 736 (Fla. Dist. Ct. App. 2008) (claiming that law requiring midwifery license burdened religious exercise).

[7] Doe No. 2 v. Norwich Roman Catholic Diocesan Corp., No. HHDX07CV125036425S, 2013 WL 3871430 (Conn. Super. Ct. July 8, 2013) (arguing that Connecticut RFRA precludes claims against Church for negligent supervision and retention of alleged abuser); Givens v. St. Adalbert Church, No. HHDCV126032459S, 2013 WL 4420776 (Conn. Super. Ct. July 25, 2013) (same); Noll v. Hartford Roman Catholic Diocesan Corp., No. HHDX04CV024034702S, 2008 WL 4853361 (Conn. Super. Ct. Oct. 20, 2008) (same).

[8] Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692 (9th Cir. 1999), (holding that the First Amendment allowed landlord to ignore housing nondiscrimination provision), vacated on other grounds, 220 F.3d 1134 (9th Cir. 2000) (en banc); see also Smith v. Fair Emp’t & Housing Comm’n, 913 P.2d 909 (Cal. 1996) (arguing same under RFRA); Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994) (rejecting landlord’s claim on both First Amendment and RFRA grounds); Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994) (ruling that state constitutional provision allowed the discrimination).