RFRA, State RFRAs, and Religious Minorities

Abstract

In recent years, in both academic and popular circles, the free exercise of religion has grown more controversial. Discussions have become dominated by a set of high-profile cases involving issues of sexual morality — abortion, contraceptives, and (especially) gay rights. Hobby Lobby, for example, involved corporations who refused to provide employees with insurance coverage for contraceptives which were seen as abortifacients. Elane Photography involved a Christian photographer who refused to take photos for a lesbian couple’s wedding on grounds of religious conscience. Hobby Lobby, Elane Photography, and similar cases have become the face of religious liberty to the general public, and it is not clear what will happen to religious liberty because of this association. One thing is certainly clear: These developments have caused many to reconsider the wisdom of the federal Religious Freedom Restoration Act (RFRA) and its state-law analogues (state RFRAs).

Yet the discussion has often lacked a sense of perspective. Hobby Lobby and Elane Photography are important cases. But most RFRA and state RFRA cases have nothing to do with discrimination or sexual morality or the culture wars. This piece points out the ways in which RFRA and state RFRAs are continuing to do valuable work for religious minorities — work that no longer seems to get much attention from anyone. Twenty-five years ago, free exercise was associated strongly with the difficult position of religious minorities in an overwhelmingly Christian America. Things are more complicated now, but that aspect of the story remains a true and vital part of it.

Note: This piece shares much of its text with my piece, “Keeping Hobby Lobby in Perspective,” a chapter written for the book, The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, and Zoë Robinson eds., Oxford University Press, 2016).

Keywords: Free Exercise, RFRA, state RFRAs, religion, church and state, separation of church and state, Establishment Clause