Hatch Op-Ed: Misrepresentation against Religious Freedom Restoration Act will not help cause of equality
Religious liberty has been at the core of our identity as a nation since its founding. Today freedom of religion is at risk, as many Americans doubt its compatibility with the promise of equality under the law. While this threat is worrisome, we have reason to hope. We’ve seen the cherished status of religious liberty challenged before, and that experience persuades me that we can likewise overcome present challenges.
In 1990, the Supreme Court decided Employment Division v. Smith, a case in which two Native American state employees argued that the state of Oregon had violated their First Amendment right to the free exercise of religion by firing them for using peyote in religious ceremonies. The Supreme Court disagreed, holding that the First Amendment does not provide heightened protection for religious practices in the application of neutral laws of general applicability, such as Oregon’s controlled substance ban. The landmark ruling significantly narrowed religious liberty protections.
Many of us found this ruling troubling. By narrowing religious liberty protections, the court was simultaneously broadening the government’s control over religious practice. Religious liberty—one of the core values at the heart of our nation’s founding—was suddenly vulnerable. Groups as diverse as the American Civil Liberties Union and the National Association of Evangelicals supported a solution.
In response, Senator Ted Kennedy and I worked together to write the Religious Freedom Restoration Act, or RFRA, to limit the effect of the Supreme Court’s decision. My colleagues on both sides of the aisle understood the pressing need to act, and the bill passed with near-unanimous support. RFRA said that government cannot substantially burden a person’s exercise of religion unless doing so is necessary to achieve a compelling government interest. Numerous prominent Democrats—including now-Vice President Joe Biden—joined our efforts on behalf of this landmark legislation. It was a triumph for the cause of religious freedom.
In recent months, some have suggested that anti-discrimination protections for gay and lesbian persons conflict with the 20 state-level RFRA laws that protect the free exercise of religion from state and local interference. In the name of fighting discrimination, recent attacks on RFRA legislation have severely misrepresented what these laws say and do. Instead of advancing equal rights, such misinformation will only sow division by demonizing religious liberty and people of faith.
This phony controversy rests on the claim, which some in the media report as fact, that RFRA laws “legalize discrimination” against gay people for religious reasons. This allegation is disingenuous; these laws are unambiguous and straightforward, and no one who has closely read RFRA legislation in its many iterations could reasonably make such a claim. Moreover, the language of the federal RFRA takes special care not to discriminate against minority groups. In fact, when Congress considered RFRA, we deliberately rejected a version that would “legalize” any particular expression of religious belief, including denying service to gays or lesbians.
RFRA is the opposite of what its critics today claim it to be. RFRA does not pick winners and losers or automatically permit anyone to do anything; it simply says that the government can only burden the exercise of religion if the burden it imposes is the least restrictive means of furthering a compelling government purpose. By this standard, RFRA makes it difficult for government to interfere with religious freedom while also helping courts identify when government interference is legitimate. The law sets a standard and leaves it to the courts to apply that standard in individual cases.
Religious freedom is not the problem. False claims and misinformation about RFRA, however, turn the truth on its head and lead to a far more destructive result. While RFRA would help distinguish between protected religious freedom and prohibited discrimination, these misguided attacks on RFRA equate the two. This misrepresentation will not help the cause of equality, but it will certainly damage the cause of religious freedom. Instead of manufacturing controversy, we should focus on solutions that accommodate both religious freedom and equality under the law.
