Let’s Repeal All the Religious Freedom Restoration Acts

by Benjamin Studebaker

In my previous post, I wrote about Indiana’s recently passed Religious Freedom Restoration Act (RFRA) and how it differs from other versions of the law passed by other states and at the federal level. Today, I want to make larger and more provocative argument that all Religious Freedom Restoration Acts–even those written tighter than the Indiana law–should be repealed. This may sound like a radical point of view to you, but hear me out.

The original federal RFRA law was enacted in 1993. The law’s original purpose was to protect Native Americans from laws criminalizing the use of peyote, a psychoactive drug. In the 1990 Supreme Case Employment Division vs. Smith, the court ruled that two Native Americans who had smoked peyote for religious purposes could be fired and denied unemployment benefits under laws prohibiting peyote. The court ruled that because the law criminalizing peyote was not religiously targeted, it did not violate the free exercise clause of the constitution. It was a 5-4 decision, notable in part because John Paul Stevens, generally associated with the court’s liberal wing, joined in conservative justice Antonin Scalia’s majority opinion.

The decision did not sit well with the public. Many people thought it was rather ridiculous that two people lost their jobs and were denied benefits for using peyote in a religious ceremony. So they enacted the federal RFRA law, which mandates that the government not burden religious exercise unless there is a “compelling government interest” at stake and the burden is the “least restrictive” means of addressing that interest.

In 1997, the court ruled that the federal RFRA law did not cover state laws, and since that ruling 20 states have enacted RFRA laws of their own:


So what’s my objection? I do not deny that it’s pretty ridiculous that two people lost their jobs and were denied benefits for smoking peyote. But why does it matter that the peyote was smoked in a religious ceremony rather than for some other reason? If the government has “no compelling interest” in enforcing the peyote law when it is smoked in a religious ceremony, why does the government have a compelling interest in enforcing the law when it is smoked recreationally? Why have a law against peyote if the issue is so unimportant that exceptions can be made simply because of what someone believes? What if you smoke peyote for libertarian reasons, or simply because you just like it?  Should you lose your job and your benefits? Does it really matter why you smoke peyote? Why should your reasons come into it?

Why did we criminalize peyote in the first place? Presumably somebody thought that peyote was a serious public health concern. If this is true and the law is the best way to handle that, why would we let anyone smoke peyote regardless of their reasons for doing so? If the government has enough of a good reason to outlaw peyote, it has enough of a good reason to outlaw it for everyone. And if the law is mistaken and peyote is not that serious or a prohibition is not the right way to handle it, why should we have a law against it at all? Why not decriminalize peyote?

In every case in which it seems reasonable to apply an RFRA law, the original law is a bad law that should not have been enacted in the first place. RFRA laws epitomize lazy lawmaking–instead of correcting or repealing bad laws, the government has created a law that excuses people from bad laws so long as they can prove they don’t agree with it and that this belief is part of some wider system of beliefs.

But that’s not all–RFRA laws create a serious constitutional problem by allowing judges to decide which laws the government has a “compelling public interest” in enforcing. Laws should not be created to begin with unless there is a compelling public interest in enforcing them, so the de facto effect is that the judiciary branch usurps the legislative power but only on behalf of religious minorities.

This allows the judiciary to create exceptions to any and all laws that the individual judges don’t agree with, a naked abuse of judicial power. Take the recent Hobby Lobby decision, for instance. Whatever your feelings about that case, one thing is very clear–whether Supreme Court justices voted for or against Hobby Lobby depended entirely on whether or not they believed there should be a law requiring employers to pay for birth control in the first place. Those judges who thought this law was unimportant and did not further a “compelling public interest” voted with Hobby Lobby. Those who thought employer provided birth control was very important dissented. It was a 5-4 decision. Many people rightly felt that the outcome depended entirely on how the judges felt about the importance of access to birth control–synonymous with whether or not a “compelling public interest” was at stake. Effectively, the RFRA law made the judges into legislators, empowering them to decide whether or not this law was worth enforcing (and by extension, worth enacting).

Conservatives, who are often loudly opposed to activist judges, nonetheless support RFRA laws because they empower judges to grant them exemptions from laws that conservatives don’t think we should have in the first place. This directly circumvents the legislature in favor of the courts. It’s a magnificently hypocritical position.

If we don’t like laws, we should change them, not carve out exemptions through an arbitrary and capricious process that relies on unelected judges to stumble into agreement with us. Religious freedom is only seriously threatened when the government enacts laws that explicitly or implicitly target people of specific religious backgrounds. Only in those situations should the courts intervene to protect religious freedom.

So let’s repeal these RFRA laws. Yes, there will be many people who will be deeply upset with many of our laws, both for religious and non-religious reasons. These people should make themselves heard, we should hear them out, and then we should decide whether or not to amend or change the laws they take issue with as a community. We should not leave it to judges to decide which of our laws are good enough to enforce and which are not. We should not treat religious objections as more valid, important, or special than other objections when the law does not explicitly or implicitly target people of any specific religious background. When laws do target specific religious or philosophical denominations, we should strike them down as unconstitutional. Any law that is worth having is worth enforcing, and any law that is worth enforcing is worth enforcing for everyone.