RFRAs, discrimination, and the prickly question of whether to trust judges

Eugene Volokh has a worthwhile series of posts up in response to the controversy over Indiana’s recently-passed “Religious Freedom Restoration Act,” or RFRA. The law prevents the government from “substantially burden[ing] a person’s exercise of religion, even if the burden results from a rule of general applicability,” unless there is a “compelling government interest” at stake and the burden on religious exercise is the “least restrictive means” of vindicating that interest.

Opponents of the bill worried that it would allow discrimination against LGBT people for religious (or “religious”) reasons. Proponents insisted that was not the intent, though the lobbyists associated with the bill appear to be firmly in the anti-gay-rights rear-guard. In any event, in broad strokes, the Indiana law is almost identical to a longstanding federal law [UPDATE: Eric points out a key difference in comments below] and a passel of other state laws, none of which has been particularly controversial, although, as Josh Blackman points out, there has been a split of authority as to whether the federal RFRA acts as an affirmative defense in lawsuits under anti-discrimination statutes. The majority of circuits to have ruled on the issue hold that it does — so, for example, a church that forces its clerics to retire at 70 can raise the federal RFRA as a defense to lawsuits based on federal age discrimination statutes. (That particular application has probably been rendered moot by the Supreme Court’s decision in Hosanna-Tabor Evangelical v. EEOC, but it still serves as an example.)

But — and this is the critical thing in all RFRA and RFRA-like cases — the fact that you have the technical right to invoke the statute as a defense to a discrimination lawsuit does not mean that the defense will work. If a government can show that its anti-discrimination law serves a compelling interest and is the “least restrictive means” of achieving that interest, the defense fails, and the plaintiff (assuming the facts are otherwise in her favor) wins her lawsuit.

How does this play out in the gay rights context? Well, Indiana it may be a moot point. The state does not have a state-wide anti-discrimination statute as to sexual orientation and gender identity, which means there is probably not a statutory cause of action in the first place. Thus, the legal effect of the RFRA on gay couples seeking wedding cakes (or, uh, pizza) was perhaps dubious all along. In any event, the Indiana RFRA has now been amended to clarify that it does not provide a defense to a civil action for refusal to provide services generally available to the public. Again, though, without a cause of action to sue under in the first place, that amendment doesn’t seem to matter much.

But what about a state like Illinois, which has both a RFRA and an anti-discrimination statute covering sexual orientation and gender identity? Can a baker in Chicago who sincerely believes his religion prohibits providing cake to gay couples on their wedding day shield himself from a discrimination lawsuit based on the state RFRA?

The likely answer is that the baker could invoke the statute, but a judge would find that the state has a compelling interest in preventing discrimination. Whether uniform enforcement of an anti-discrimination statute is the least restrictive means of accomplishing that interest in all situations is not beyond doubt; under the federal RFRA and RFRA-like statutes, for example, the government must show that the means chosen are the least restrictive by arguing that other alternatives are infeasible. Thus, for example, it might be argued that there is a less restrictive alternative: not enforcing the statute as long as there is at least one baker in the jurisdiction who will serve gay couples. But in the specific case of providing public accommodations (i.e., offering your baking business to the public), it seems unlikely that a judge would hold the government to that alternative, because to do so is to impose a “separate but equal” fiction that, as is now well-understood, thoroughly undermines the anti-discrimination regime. In short, a judge would essentially have to adopt the reasoning of the Plessy v. Ferguson majority. It’s hard to imagine that happening, and if it did, it’s hard to imagine the Illinois Supreme Court supporting such a reading of the state RFRA.


So why did the Indiana law provoke such a firestorm of controversy? The obvious answer is that most people don’t understand how RFRAs and strict scrutiny work, but sophisticated journalists and lawyers added their voices to the condemnation of the law. That may reflect a certain disgust with the anti-gay animus motivating the law, absent consideration of its likely effect (which, as I’ve said, may be none at all). But another explanation is that gay rights activists don’t yet trust the courts to vindicate gay rights. People do not necessarily trust judges to conduct the above compelling interest/least restrictive means analysis, understand its implications, and rule against the baker.

And there’s some reason for that skepticism when it comes to gay rights. One reason we don’t have to worry about state RFRAs creating loopholes for racist bakers to refuse service to black couples is that there is a whole framework of federal anti-racial-discrimination law that easily preempts any state statute. No corresponding comprehensive federal law currently exists as to sexual orientation and gender identity. And a few judges have shown themselves determined to support discrimination in the area of gay marriage.

But as Eugene points out (especially here), not trusting judges to sensibly balance religious liberty with other social interests is largely a conservative position. It was Justice Scalia‘s opinion in Employment Division v. Smith, holding that the Free Exercise Clause did not provide any exemption from laws of general application, that provided the impetus for Congress to pass the federal RFRA in the first place.

In Smith, the plaintiffs were American Indians who were fired from their jobs, and subsequently denied unemployment benefits, for using peyote as a sacrament. Under an older case called Sherbert, the Supreme Court had held that the government had to meet a compelling interest standard to be able to substantially burden religious exercise. Scalia’s opinion in Smith, overruling Sherbert, famously observed that allowing religious exemptions based on religious belief would permit every believer, “by virtue of his beliefs, to become a law unto himself.” In a passage evincing a stunning lack of faith in the ability of American courts to sort out complex questions, Scalia announced that the “compelling interest” test could not hold back the tide of “anarchy” that would result if a court found that the Free Exercise Clause allowed an Indian to smoke some peyote:

If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because we are a cosmopolitan nation made up of people of almost every conceivable religious preference, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.

bender anarchy

These alarming predictions did not come to pass, even though the federal RFRA, its sister statute RLUIPA (the Religious Land Use and Institutionalized Persons Act, which applies the compelling interest test to state actors as to land use and prisoners’ rights), and the state RFRAs have been in place long enough now that we ought to have seen the collapse of our system of law and order, if that were going to happen.

In large part, this is because judges are not idiots. (Pertinent exceptions are, of course, noted.) As Chief Justice Roberts explained in a later RFRA case, responding to the Justice Department’s contention that drug laws must be applied uniformly in order to be effective,

[T]he Government’s argument for uniformity . . . rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” This determination finds support in our cases; in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as “no more than a possibility” the State’s speculation “that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work” would drain the unemployment benefits fund.

Justice Scalia joined in that opinion, and conservatives have since embraced the compelling interest test, once they realized it could be read as solicitous of, say, the right not to provide contraception coverage. But Eugene’s general point is very strong — conservative legal thinkers tend to trust legislatures and the political process, because the legislative process is (theoretically) imbued with “democratic legitimacy.” In other words, they represent the majoritarian strain in democratic theory. Mid-20th-century liberals, on the other hand, looked to the courts and strong (conservatives mights say “made-up”) readings of constitutional protections as a check on the majority and the power of the state. They represent the counter-majoritarian strain of thought. For Scalia in 1990, the courts had become undemocratic and nearly lawless, finding “constitutional rights” to things that aren’t mentioned in the Constitution, like abortion and Miranda warnings. “What’s next,” he seems to be asking in Smith, “a ‘constitutional right’ to use drugs???”

Today, however, the Supreme Court — which is what most people think of when they think of judges interpreting the law — is dominated by conservative thought. It has been moving rightward for more than two decades, since the early 90s saw Justices Blackmun and Brennan replaced with the decidedly less liberal Souter and Breyer and Justice Marshall replaced with arch-conservative Justice Thomas. The Rehnquist and Roberts Courts have been visibly hostile to affirmative action, abortion rights, gun control, the sovereignty of Indian tribes, the Affordable Care Act, and counting votes in Florida. Progressives have reason to be skeptical that our highest judges, at least, will act to protect the weak and vulnerable. At the same time, at least in the case of gay rights, there’s been a sudden upwelling of popular support. So for many progressives, embracing the use of political and economic clout to change the minds and force the hands of Indiana legislators probably seemed preferable to leaving to a judge who might get it wrong.


There was nothing illiberal or nonprogressive about the use of political pressure and the political process to change the Indiana law, even if, as I suspect, it was to little actual legal effect. But we should be careful about dismissing religious liberty statutes out of hand as nothing but a tool of bigotry. Not all progressive causes are experiencing an upswing of mainstream support. One of the key functions of at least the federal RFRA and RLUIPA has turned out to be securing a modicum of human comfort to the most despised segment of our population: prisoners.

Absent the statutes, prison officials could nearly always create internal regulations of “general applicability” that would have the effect of depriving prisoners of the right to free exercise. The statutes have helped secure the right to things like the wearing of long hair and sweat lodges for American Indians, kosher/halal/vegetarian meals, group worship ceremonies, the possession of certain artifacts or objects of reverence, and the possession of religious texts. They have protected the rights even of members of disfavored religions like Wicca and Satanism. Recently, the Supreme Court unanimously struck down a ban on beards — including beards grown for religious reasons — in Arkansas prisons. Notably, Justice Alito’s opinion held that RLUIPA “does not permit . . . unquestioning deference” to prison officials’ determinations of what is feasible. That is the polar opposite of the approach taken to prisoners’ rights other than religious liberty, as even the briefest perusal of Eighth Amendment cases reveals.

This relatively strong protection of one aspect of the human dignity of incarcerated people did not arise because the American people felt a brief rush of affection and sympathy for them. It was at best a side effect of RFRA, and when the Supreme Court held that the federal RFRA could not be applied to the states, RLUIPA was passed only with a great deal of debate: the legislative history of early incarnations of the bill shows, for example, that some legislators wanted to exclude prisoners from any religious freedom statute aimed at the states. Strom Thurmond expressed deep skepticism toward the idea of expansive religious liberty for prisoners, while the Commissioner of the New York State Department of Correctional Services urged Congress not to adopt the compelling interest/least restrictive means test. Nonetheless, the bill was passed, in part because of lobbying by influential members of the Christian right like Chuck Colson. Colson had gone to prison in connection with Watergate and had emerged reborn as an evangelical who ministered to prisoners and worked for prison reform. Religion provided one — perhaps the only — humanizing narrative about prisoners for conservative legislators, and so religious liberty became a small window through which a light of hope could shine into America’s prisons.

But this salutary effect of the religious freedom statutes has come about largely because Congress entrusted judges to sensibly apply the compelling interest test. There is simply no way to create a statute comprehensive enough to cover every belief system and every possible request, and even if there were, a direct command to prison officials to allow every religious expression on a compiled list, without due regard for the conditions within the prison, would be the real path to anarchy. What staves off anarchy on the one hand, and grim oppression on the other, is individualized human judgment: a reasonably impartial, reasonably fair person trying to balance competing interests. This is not to say the considered judgments of America’s jurists are uniformly the best choices. At a minimum, for example, the federal bench is heavily weighted toward former prosecutors and “big law” commercial attorneys, which introduces considerable bias into the system, and not by any means a bias that favors prisoners. But as a general matter, the way that you deal with competing interests — which is what the law, fundamentally, is about — is not by having an ironclad rule, but by setting priorities and letting human beings make (admittedly imperfect) assessments as to the right balance.


Conservative jurists do not like this approach, as can be seen in Justice Scalia’s scornful blast at Justice Breyer’s proposed “judge-empowering interest-balancing inquiry” in District of Columbia v. Heller:

After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

Of course, we balance interests with regard to “constitutional guarantees” all the time, as Justice Scalia recognizes a few sentences later when he notes exceptions to the First Amendment for “obscenity, libel, and disclosure of state secrets” (in the heat of the moment, he apparently forgets incitement to riot). He waves a vague hand at the idea that “the people” conducted their own balancing of interests in adopting the Bill of Rights (including these exceptions which are, mysteriously, nowhere to be found in the text of the First Amendment). That idea, however, is thoroughly undermined a short time later when he assures readers that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” As has been argued by a number of scholars, those prohibitions are not longstanding — they certainly do not date back to the ratification of the Bill of Rights, when the “people” are supposed to have done their interest-balancing. Those exceptions can only be the product of Justice Scalia’s own consideration of certain interests, like reducing violent crime and protecting children, that outweigh the seemingly absolute textual right to keep and bear arms. He was not wrong to place those interests in the balance, but balance them he did. (Moreover, despite the majority opinion’s clear rejection of interest-balancing, in practice post-Heller courts have largely vindicated Breyer’s approach, even though they genuflect to the majority.)


Much of the conservative legal project comes down to an attempt to create simple, clear, but often harsh and inflexible rules, usually based on an “original meaning” theory, and explicitly shunning, to the degree possible, legal decisions based on considerations of policy, competing interests, or consequences. As we can see with Heller, it is nearly impossible to carry out that project perfectly, but that is the goal.

The 20th century liberal project, on the other hand, was very much based on the notion that judges should take important, conflicting social interests into account and try to fashion both individual judgments and rules of law that took account of those interests and tried to do justice to them.

It is not, perhaps, clear yet whether 21st century progressivism is quite so invested in the sagacity of judges, and there may be good reasons to doubt it. But legislation is and always will be a blunt instrument, compared to individualized judicial inquiry, and an attempt to create blanket rules through legislation will frequently result in harsh, unjust, unintended results. Even the amendment to the Indiana RFRA, which is a solid and thoughtful political compromise, represents a choice to potentially exclude from the compelling interest protection of the RFRA at least some acts of discrimination in the provision of services or public accommodations that should probably be lawful.

For example, one can imagine a conservative evangelical Christian poet who writes, for a small fee, special wedding poems for other conservative evangelical Christians, celebrating their love and unity in Our Lord Jesus Christ. She does not, however, write poems for Catholic, Muslim, or gay couples, because she believes she is not called to do so. Because she provides a service, for money, to the public, she is not under the shelter of the Indiana RFRA, given the new amendment. Should she be? Assuming there is an applicable anti-discrimination statute, she likely has other defenses — freedom of speech, certainly, and perhaps freedom of religious exercise under the First Amendment, though under the Free Exercise Clause the court would have to be much more deferential to the anti-discrimination statute than under the RFRA. But if those defenses apply to a poet, why don’t they also apply to a baker? Perhaps because poetry is somehow inherently more expressive than baking… but then what about photography, which is easily held to be expressive speech? And does anything about this change if our poet/photographer/baker refuses to serve black couples for religious reasons, given the Constitution’s particular concern, post-Civil War, with discrimination on the basis of race?

I don’t know the answers to any of these questions. But they probably can’t be justly resolved by resort to a general principle, even one articulated in legislation, that discrimination is bad, or that discrimination in the provision of goods and services or accommodations is bad. Untangling the knot of human interests at stake — including the right to be a bigot, at least in one’s heart and one’s words — probably can’t be done by “the people.” It has to be done by one person, to whom we extend some measure of discretion.

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5 Responses to RFRAs, discrimination, and the prickly question of whether to trust judges

  1. Eric says:

    Two quick points before I have to run back to a courtroom:

    1) Saying that the Indiana RFRA is “almost identical” to the Federal isn’t quite right; the devil in the details is the Indiana statute’s provision that, “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter” (emphasis added). I don’t think anybody really understands what this is supposed to mean, and whether the corresponding governmental “unconditional right” to intercede is akin to some kind of obligation or whether it’s just an invitation to conservative state AGs to stick their noses into civil suits, but this is what people got into a tizzy over (and not because of a lack of understanding of how RFRAs work and how strict scrutiny works).

    One of the impetuses behind the Indiana law appears to be a New Mexico civil suit between a citizen party that wanted to buy a wedding cake and a citizen party that didn’t want to bake it for them. New Mexico appears to have a broad anti-discrimination statute that gives the first party a cause of action against the second. Indiana apparently lacks such a anti-discrimination statute, so why they suddenly need an RFRA is a little head-scratchety. But it appears that if a state had such an anti-discrimination statute and an RFRA written as Indiana’s is, the bakery would have an additional affirmative defense and the Attorney General would have an “unconditional right” to intercede on the bakery’s behalf. As you rightly observe, that doesn’t mean the bakery would win; on the other hand, it’s an obvious attempt to stack the deck in favor of the bakery (or any similar party); the plaintiff now has to argue an additional issue and is now perhaps fighting the state, and the state is perhaps spending good taxpayer dollars to defend discrimination.

    Maybe that’s a big deal, maybe not, but the Federal RFRA does no such thing, obviously. If the Indiana RFRA hadn’t added such language, perhaps there would have been no outcry, however; or at least the outcry would have been obviously without foundation.

    2) I think it’s worth pointing out that another issue with the “if there’s one bakery that doesn’t discriminate” argument is a purely pragmatic one: part of the reason the Federal government had to address racial discrimination is that the free market often failed to provide even separate (much less equal) public accommodations in the South. Businesses in the South that were willing to serve blacks often found themselves approached by Concerned Citizens Councils, the concern of those citizens being that the business in question was awfully “un-neighborly” to not operate under the same social mores of the rest of the community, why cause trouble, wouldn’t it be a shame if anything happened to a nice establishment like this one, etc.. The “one business that doesn’t discriminate” often proves chimerical in reality, which is why it ends up being better to not allow anyone offering a public accommodation to discriminate. (Does Rand Paul not understand this, or is he just disingenuous? Discuss.)

    Anyway, now I’m late getting back. I may or may not have other observations later. Thanks for the piece. Cheers.

    • thehandsomecamel says:

      Thanks — I hadn’t noticed that bit about the AG being able to intervene. That does make the bill potentially more egregious — though there might be situations where we would want the AG to intervene on behalf of a RFRA claimant. Can’t think of a good example off the top of my head, but I feel certain something could come up in the labor and employment context, for example.

      • thehandsomecamel says:

        Though now I’ve let it rattle around in my head for half an hour and still don’t have a good example, so….

  2. Eric says:

    Put yourself in the shoes of the poor schlub who’s suing someone for alleged discrimination, and suddenly finds out they’re also suing the state because the AG has joined in some kind of intercessory fashion. I mean, even if the poor schlub deserves to lose his case, surely he deserves to lose on an equal footing and not because the defendant has been joined by a party with infinitely deep pockets and legal superpowers.

    Not to mention the fact that we presumably want the state to be either anti-discrimination or (if that’s impossible) neutral: if the question is really orientation-discrimination versus free-exercise discrimination, do we really want AGs picking sides and choosing battles? If a Protestant refuses to serve Catholics and this results in a cause of action, does the AG get a preference? If the AG declines to intervene in that case, does that preclude the AG’s intervention in a subsequent Protestants v. Jews case? If the AG decides not to intercede in religion versus religion cases, but does intercede if its race versus religion, is that tantamount to the state saying that some bigotries are protected.

    To sort of elaborate on an earlier point that was buried in my earlier comment: if Indiana had merely quoted the Federal RFRA, the state might have garnered some eye-rolling because of the obvious homophobia of the bill’s backers, but it wouldn’t have invited the firestorm that ensued. And there might be a debate over whether the Federal RFRA experiment was worth repeating, but it would be a different debate. But the Indiana statute includes two key changes: (1) unlike the Federal statute, it creates an RFRA defense between non-governmental parties, and (2) it creates this unholy mess of a new state right to intercede in disputes between non-governmental parties. Even if a RFRA is a defensible idea (and it certainly appeared easier to defend when the issue was Native Americans, after centuries of cultural Holocaust and forced Christianization, becoming targets in a Drug War that was already appearing to be a misguided and out-of-control debacle), these two changes turn it into something different and worse.

    • thehandsomecamel says:

      Yep — all excellent questions. On the other hand, what if the religious burden arises in the context where it’s the RFRA-asserting party who’s the poor schlub, and the opposing party that’s rich and powerful? I’m not endorsing the intervention provision (I agree, it seems pretty disturbing), just imagining that there may be situations where it sometimes works to the advantage of the little guy. Anyway, speaking only for myself, I didn’t see it mentioned (or at least not highlighted) in the reporting I read or the social media commentary I was exposed to. But I’m totally willing to believe that other people were aware of the provision and it somehow slipped by me.

      As for the application of the state RFRA to private disputes, as I said in the post, that’s a codification of one side of a circuit split on the federal RFRA. But I agree it’s weird, and I think not what the RFRA was intended for.

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