Rules Are for Schmucks: RFRA’s Tangled Web

The Indiana State Capitol Building

Sir Walter Scott warned that “O, what a tangled web we weave, when first we practise to deceive!” He was right about that, but today one might add that we also weave tangled webs when we have laws apply in different ways to different people based solely on what those people claim to believe about the supernatural.

Matters have certainly grown tangled in Indiana, Arkansas, and the other states wrestling with the insanity known as the Religious Freedom Restoration Act—which the Daily Beast’s Jay Michaelson calls “RFRA Madness.” Here are some conundrums to ponder:

Is RFRA really about gay rights?

Nearly all of the outcry over the new Indiana law has come from the LGBTQ community and those who sympathize with it. What makes this so strange is that there are nineteen other states that have laws generally similar to Indiana’s already on the books, some of them for decades. The oldest of these, in fact, is in Connecticut, whose governor sanctimoniously got the ball rolling against Indiana’s similar law by banning state-funded travel there. But not one of these laws has ever been successfully used to justify a business denying service to gays. In fact, there is only one case where it’s ever been tried—and that business lost. It is certainly possible that someday some baker, florist, or pizzeria will successfully rely on a state RFRA to lawfully deny service to gays, blacks, Jews, atheists, or someone else, either in connection with a wedding or otherwise. But the massive outcry over an evil that could have been happening for the past decade in lots of places, but in fact has not, is a puzzle. So is the failure of all those who want to boycott Indiana to add any of the other preexisting RFRA states to their list. If you want to boycott them all, here they are: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Missouri, Mississippi, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.

Will the uproar help Democrats?

Pundits say it will, but that seems a little odd as well. In fact, as Governor Pence points out, Barack Obama voted for RFRA in the Illinois legislature long before the idea came to Indiana. Katie Sanders of Politifact twists herself into a pretzel trying to justify Obama’s 1999 vote; her logic largely boils down to “That was then, and this is now.” She also tries to make something of the difference that the Indiana law explicitly applies to corporations as “persons,” while the Illinois RFRA leaves the term “person” undefined. But since we have the Supreme Court’s Hobby Lobby opinion interpreting the federal RFRA to include corporations as persons, this distinction is specious.

Of course, mere consistency doesn’t prevent the White House from criticizing the same law that Obama previously voted for because it goes against “equality” for all Americans. But every single RFRA, no matter how it’s worded, is diametrically opposed to “equality,” because the whole point of every single RFRA is to treat people unequally based on what they say are their religious beliefs.

We also saw Hillary Clinton chime in with her own “me too” condemnation of the Indiana law—without mentioning the nearly identical law her husband signed back in 1993 that attempted to force RFRA down the throat of every state and locality in the nation.

If Democrats aren’t our friends on this, then who is?

Business, that’s who. Politics indeed makes strange bedfellows—when’s the last time you were on the side of Walmart, the Chamber of Commerce, and NASCAR, and opposed to Barack Obama and Bill Clinton?

In my long legal career working with businesses, I learned that the one thing they crave is certainty. You can pass almost any law, and if they can understand it, they can deal with it. What they can’t deal with is not knowing what the law is and being subject to the varying whims of bureaucrats and judges. That’s why the Indiana Chamber of Commerce opposed the bill long before the rest of the country exploded, with its vice president explaining that: “The reason, in one word, is litigation. We believe if [the bill] passes, it’s going to be a litigation nightmare.”

If RFRA doesn’t primarily threaten gay rights, then what’s wrong with it?

Plenty. We’ve already seen the establishment of the First Church of Cannabis in Indiana by a self-styled Grand Poobah who claims that smoking weed is part of his faith and is delighted that his religious freedom has now been restored. In other places, we’ve seen RFRA facilitate religious people in violating child labor laws. Even aside from the relatively new phenomenon of same-sex marriage, there is still a significant minority of Americans who haven’t yet reconciled themselves to interracial marriage, and RFRA would give those folks a shield to hide behind as well.

The most cogent analysis of the dangers of RFRA was prepared by former Georgia Attorney General Michael Bowers, who argues that Georgia’s proposed RFRA “will permit everyone to become a law unto themselves in terms of deciding what laws they will or will not obey, based on whatever religious tenets they may profess or create at any given time.” Bowers has not traditionally been a friend of the LGBTQ community—he argued for the criminalization of “homosexual sodomy” before the Supreme Court back in the 1980s. He says he’s changed his views on that. But he’s incensed about the threat to the rule of law that RFRA poses, especially now that it’s clear that corporations have religious rights, too. Vaccination requirements are one casualty he cites—not only for individuals, but also for corporations that could use a Hobby Lobby analysis to refuse to pay for health insurance that covers state-mandated vaccinations, just like they can now refuse to pay for health insurance that covers federally mandated contraception benefits. “Allowing each person to become a law unto his or herself destroys uniformity of the law and creates mass uncertainty on the part of law enforcement, state and local officials, and professional educators confronted by those challenging the applicability of law or policies on religious grounds,” Bowers points out. “It is assured that this uncertainty will encourage lawsuits seeking pronouncements on the proposed RFRA and could result in a flood of new cases.”

The web has grown tangled indeed. Repealing RFRA everywhere it raises its ugly head is the only way to untangle it.