Over the past few weeks, there have been several states trying to pass their own versions of the Religious Freedom Restoration Act (RFRA). Several companies have come out against the Indiana version of the act, and several other states have their own versions in progress. In order to understand why these acts are being passed, it is necessary to understand why they are being proposed, what they hope to achieve, and what the current resistance is to these bills.
In 1993, the Federal government enacted the Federal RFRA . During that time it was used to protect the rights of Native Americans, their religions, and the sacred lands that they held dear. While it is true that the first amendment of the constitution protects our right to religion, there have been a few court cases that have eroded those protections (Sherbert v. Verner and Wisconsin v. Yoder). The congress proposed this law in order to remedy situation and to protect several injustices that were happening to the Native American community. However, in 1997 (City of Boerne v Flores) the court ruled that the RFRA did not apply to the state level.
In 2014, after the Burwell v. Hobby Lobby Stores, Inc. nineteen members of Congress stated that they "could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA". They further stated that the RFRA "extended free-exercise rights only to individuals and to religious, non-profit organizations. No Supreme Court precedent had extended free-exercise rights to secular, for-profit corporations."
As of the 2015 legislative session, there were 20 states that have a state level Religious Freedom Restoration Act (RFRA), and there are 16 states that have proposed the legislation. The effect that the RFRAs have on a state court case will mandate the courts to use the following when considering religious liberty cases:
- Strict scrutiny, which is the most stringent standard of judicial review used by United States courts. The law or policy must be narrowly tailored to achieve that goal or interest. The law or policy must be the least restrictive means for achieving that interest. The law or policy must also be justified by a compelling government interest.
- Religious liberty can only be limited for a compelling government interest
- If religious liberty is to be limited, it must be done in the least restrictive manner possible.
Why is there such an uproar over this legislation? They are trying to correct what the Supreme Court did in 2014 right?
Indiana (and several other states) do not provide for protections for the specific groups of people (specifically members of the LGBT community), basically allowing businesses to discriminate against people due to certain religious beliefs. This caused several people to protest, and several big businesses to withdraw expansion projects that were slotted to occur in Indiana. Potential damages totaling well over $50 million, as well as other sporting events that were planning to withdraw support and future engagements.
Indiana and Arkansas have both made adjustments to their RFRA laws to include these protections, but several other states have similar bills in progress. This will likely serve as a lesson to be learned by the other states that are that do not currently protect its citizens.