State RFRAs: Trust Judges to Strike the Proper Balance Between Religious Freedom and Anti-Discrimination Law

Abstract:     

The Supreme Court has recognized the importance of the right to free exercise of religion for more than half of a century, but has narrowed this right in recent decades in deference to the states. Some states have responded by providing broader protections for free exercise through the adoption of state RFRAs. Recently, in Arizona and Mississippi, debates over the adoption of state RFRAs have caused major rifts in the political community. The primary concern has been the perceived conflict between RFRAs and anti-discrimination laws, premised on the view that the former create sweeping exceptions to the latter.

However, the anxiety surrounding this clash is misplaced and evidences a misunderstanding of what RFRAs actually do, and whom they protect. This article is the first to analyze recent state RFRA controversies in the hope of clearing up some of these various misconceptions while advocating the best way forward for the states.

This article examines various ways of approaching Free Exercise protection in the states, and it advocates the most effective strategy in providing protections while respecting civil rights laws. State RFRAs should simply adopt the traditional balancing test once endorsed by the Supreme Court, which has been used in various contexts for more than half of a century. Judges are in the best position to weigh the interests at stake in cases that pit religious freedom against anti-discrimination laws, and states should trust the judiciary to apply this test.

Broadly written RFRAs will allow for all people to have a day in court and will allow judges to do case-by-case analyses of the issues, which are sensitive to all concerns. Judges can be trusted to strike an appropriate balance between religious liberty with respect for principles of anti-discrimination, and the judiciary should be given this respect.

Number of Pages in PDF File: 36

Keywords: Religious Freedom Restoration Act, RFRA, Religious Freedom, LGBT, Religion, Gay Right, Gay Marriage, Same-sex marriage