Why It’s Time to Repeal the Religious Freedom Restoration Act

[cbayer]

http://www.thenation.com/article/180832/why-its-time-repeal-religious-freedom-restoration-act#

The law, passed in 1993 with near-unanimous support, has become an excuse for bigotry, superstition and sectarianism.

Katha Pollitt
July 30, 2014


A demonstrator dressed as the 'Bible' stands outside the Supreme Court building awaiting the court's decision on the Hobby Lobby case. June 30, 2014. (AP Photo/PAblo Martinez Monsivais)

In the not-too-distant future, it’s entirely possible that religious freedom will be the only freedom we have left—a condition for which we can blame the Religious Freedom Restoration Act of 1993. Passed practically unanimously, with support from Ted Kennedy to Orrin Hatch, the ACLU to Concerned Women for America, the bill was a response to the Supreme Court’s decision in Employment Division v. Smith. This case involved two Oregon members of the Native American Church who were denied unemployment compensation after being fired for using peyote, an illegal drug, in a religious ceremony. Justice Antonin Scalia’s majority opinion, which held that a law that applied to everyone and was not directed at religion specifically was not a violation of religious freedom, made a lot of sense to me, then and now. Why should I have to obey a law and my religious neighbor not?

RFRA, which required laws infringing on religious convictions to meet the “strict scrutiny” test, was overkill. There were other ways to protect Native Americans’ right to use peyote in religious ceremonies. The church could have asked the State Legislature for an exemption; after all, during Prohibition, the Catholic Church was allowed to use wine in the Mass. Or—but now I’m really dreaming—workers could have been given legal protection from losing their jobs for minor lawbreaking outside the workplace. I mean, peyote! Come on. But no, for some reason, there had to be a sweeping, feel-good, come-to-Jesus moment uniting left and right. “The power of God is such,” said President Clinton, “that even in the legislative process, miracles can happen.” Gag me with a spoon.

What were progressives thinking? Maybe in 1993, religion looked like a stronger progressive force than it turned out to be, or maybe freedom of religion looked like a politically neutral good thing. Two decades later, it’s clear that the main beneficiaries of RFRA are the Christian right and other religious conservatives. RFRA has given us the Hobby Lobby decision permitting religious employers to decide what kind of birth control, if any, their insurance plans will provide. It’s given us “conscience clauses,” in which medical personnel can refuse to provide women with legal medical services—culminating in the truly absurd case of Sara Hellwege, an anti-choice nurse-midwife who is suing a federally funded family planning clinic in Tampa for religious discrimination because it declined to hire her after she said she would refuse to prescribe “abortifacient contraceptives,” i.e., birth control pills. (That the pill does not cause abortion is irrelevant—this is religion we’re talking about; facts don’t matter.)

For some, RFRA doesn’t go far enough because it doesn’t apply to state law. In April, Mississippi became the nineteenth state to enact its own RFRA, which essentially legalizes discrimination against LGBT people by individuals as well as businesses, as long as the haters remember to attribute their views to God. Instead of protecting LGBT people from discrimination—a business refusing to serve them, for example—Mississippi will be siding with the bigots, just like old times. Last year, the state passed the Student Religious Liberties Act, which gives pupils the right to express themselves freely on matters of faith without consequences. Johnny can tell his classmate Jane that she’ll burn in hell because she’s a lesbian and write all his biology papers on Adam and Eve and their dinosaur pets, and the school can’t say a word about it. That would be intolerant.

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[Ikonoklast]

1. Anyone that justifies their bigotry by hiding behind their version of a "holy book" is a liar.

They're just plain old bigots, religion is their excuse, not their reason.

[cbayer]

2. Agree, and if this act gives them the means to do it legally, that's a problem.

[Ikonoklast]

3. The SC basically said they were upholding that legislation.

Repeal it, and all this 'corporate religion' bullshit goes away, make the bigots own their hate outright.

Of course, until that occurs I am also awaiting the first lawsuit naming owners and/or shareholders as being held personally responsible for any damages in a judgment, as the Hobby Lobby ruling also completely pierced the corporate veil.


Owner's personal religious beliefs are also now the corporation's ? Sorry, but it won't just stop at that.

Everything else is also on the table, including every personal asset, because you deliberately conflated the personal and corporate into one.

[cbayer]

4. I think there may be unintended consequences of the hobby lobby decision

that some religious groups may come to regret. As you say, there are corporate protections that should not be given up if one wants to protect individuals from liability.

I don't know what it takes to repeal this act, but congress is unlikely to proceed anytime soon.

[Jim Lane]

6. Corporate limited liability is not at issue.

One can argue about whether Congress intended the RFRA to apply to corporations. There is, however, no sensible argument to be made that Congress intended the RFRA to eliminate the well-established principle that shareholders are not responsible for corporate debts.

You're free to view this as logically inconsistent. The consequence of any such inconsistency, however, would be that RFRA would not apply to corporations. No court would accept the argument that, in addressing the problems of Native Americans who use peyote in religious ritual, Congress casually and without any discussion overturned a bedrock principle of corporate law.

[cbayer]

7. I appreciate the explanation. Clearly you understand this a lot more than I do.

[reACTIONary]

5. K&R (nt)

[Humanist_Activist]

8. Religious Exemptions shouldn't exist, I have yet to find one good reason for their existence.

All they seem to do is provide cover for people who refuse to do their jobs, or follow anti-discrimination laws, basically to exempt themselves from any type of government oversight and regulation.

You should NOT have the right to run your business as you see fit.

You should NOT have a right to federal or state funds without oversight.

You should NOT have the right to refuse to do your jobs or provide a service, whether on an individual or corporate basis.

I don't give a shit what your beliefs are, these are NOT rights that we have.

[Jim Lane]

9. Some exemptions are reasonable.

For example, by statute, the Amish are exempt from Social Security. It's against their religion (because it's a form of insurance and any insurance is seen as disrespectful to the will of God). Furthermore, the public purpose isn't seriously undermined by the exemption, because the Amish function as a community and they themselves take care of their sick and elderly and orphans.

The problem with the RFRA is that it tries to provide a sweeping authorization for exemptions, instead of the carefully tailored amendment to the Social Security Act that resolved the Amish problem. In an area where nuance is so important, any attempt at a general solution will usually be both over-inclusive and under-inclusive.

Furthermore, a lot will depend on the judge's subjective feeling about the case. Consider:
* "It's against my religion to pay insurance premiums that will enable someone else (my female employees) to use IUD's."
* It's against my religion to pay taxes that will enable someone else (my government's soldiers) to kill people."

We may reasonably speculate that the five Catholic men who decided Hobby Lobby will be much less solicitous of the religious freedom of the pacifist in the second example.

[okasha]

10. The actual issue in the Oregon case

was the sacramental use of peyote by members of the Native American Church. That issue, and many others involving Native Americans, would have been far better addressed by giving genuine recognition to tribal sovereignty and honoring treaty rights. This feel-good legislation is a fine example lf the law of unintended consequences.