This year, when Montana and South Dakota passed similar legislation, the backlash was so muted by comparison that even some religious freedom experts didn’t hear about the bills until the Deseret News sent an interview request.
The stark difference in responses shows that the reputation of state-level religious freedom protections is improving, even as battles over their impact on gay rights continue to rage, said Tim Schultz, president of the 1st Amendment Partnership in Washington, D.C.
“Debates over these bills aren’t reaching the same level of DEFCON 3 culture war as they did six or seven years ago,” he said.
However, Schultz added that he doesn’t expect conflict over religious freedom laws to ever entirely die out, since the protections they offer are often broad enough to put both conservatives and liberals on edge.
“It’s like Democratic Rep. Steve Solarz, who pushed for federal religious freedom protections, once said, and this is a paraphrase, ‘Religious freedom is always very popular in theory, but it can be very unpopular in specific instances,’” he said.
History of RFRAs
The laws Schultz describes are called religious freedom restoration acts, or RFRAs (pronounced riff-rahs) for short. Although they come in different forms, all varieties seek to prevent the government from interfering with religious activity except in cases where there’s no other way to achieve important public policy goals.
The first RFRA was passed by Congress in 1993 in response to a Supreme Court ruling that weakened religious protections offered by the First Amendment. The bill was written to apply to both state and federal governments, but that didn’t stop two states — Connecticut and Rhode Island — from quickly passing RFRAs of their own.
In 1997, the Supreme Court said Congress didn’t have the power to apply the religious freedom law to the states, which prompted 14 more states to pass RFRAs over the next 13 years.
During that era, RFRA bills “largely enjoyed bipartisan support” because they were seen to offer needed protections to members of minority faiths, Schultz said. They were associated with Native Americans fighting for the right to use otherwise illegal drugs in sacred rituals or Jehovah’s Witnesses who needed to be saved from working on their Sabbath.
But consensus around the laws didn’t last.
In 2013, nearly all Republican legislators and around two-thirds of Democrats in Kansas and Kentucky voted in favor of new religious freedom laws. The next year, only four total Democrats voted in favor of RFRA bills proposed in five different states.
“Over a period of just one legislative cycle, the politics of RFRA went from pretty darn bipartisan to almost purely partisan,” Schultz said.
Multiple factors contributed to this shift, including conservative faith groups’ use of the federal law to challenge the Affordable Care Act’s birth control mandate. But most notably, state-level RFRA bills became inextricably linked to growing conflict over LGBTQ rights, Schultz said.
“Some conservative lawmakers began to promote RFRAs as an antidote to court action on gay marriage,” he said. In response, “progressives mobilized to stop them.”
In 2014, a RFRA bill in Arizona faced such intense national pushback that the Republican governor vetoed it. The next year, Indiana lawmakers and then-Gov. Mike Pence faced an even stronger backlash, which led the legislature to update its newly passed RFRA law to limit its application.
Until this year, no state had passed a RFRA since 2015, Schultz said.
As Schultz noted, conservative lawmakers are partly responsible for sinking RFRA’s reputation. By presenting the bills as a way to undermine gay rights, they invited attacks on the whole concept of religious freedom.
“If state RFRAs are tethered to the issue of LGBTQ rights, they’re going to have a lot of political problems,” Schultz said.
Indiana proved that, wrote Douglas Laycock, a professor of law and religious studies at the University of Virginia, in an email. Conservative politicians there openly talked about how their RFRA bill would shield Christians from discrimination claims.
“Indiana Republicans didn’t care about Amish buggies or Orthodox Jews with beards or strict Sabbath requirements or neighbors objecting when churches tried to feed the homeless or any of the other traditional beneficiaries of RFRAs. They cared about conservative Christians and same-sex marriage,” he said.
However, Laycock and other religious freedom advocates have also long been frustrated with RFRA’s many critics.
Amid growing polarization, liberal politicians and LGBTQ rights activists have missed — or willfully ignored — the fact that religious freedom protections remain more likely to benefit members of minority faiths than Christians who opposed same-sex marriage, Laycock said.
“The gay rights and progressive reaction against state RFRAs was bizarre, and some of the things they said were ridiculous. States with older RFRAs boycotted travel to states enacting newer RFRAs,” he said.
Today, Democratic politicians and left-leaning religious organizations sometimes claim that religious freedom laws have become a “license to discriminate.” That helps explain why the Equality Act, a federal bill that would update civil rights laws to protect members of the LGBTQ community, aims to limit the application of the 1993 Religious Freedom Restoration Act.
Developments like that proposed limitation are “mostly a function of our polarization and the deep mistrust that each side has of the other,” Laycock said.
In reality, RFRA laws are both less powerful and more valuable to minority faiths than most people understand, Schultz said.
“These bills are not the sort of supercharged religious freedom protection that some conservatives would like them to be. But neither are they the kind of culture war thing that progressives portrayed them as,” he said.
Research done in 2016 by Christopher Lund, who is now a law professor at Wayne State University in Michigan, showed that RFRAs were rarely cited in legal cases and even more rarely used to sidestep LGBTQ anti-discrimination rules.
Then, as in the past, religious freedom laws primarily benefitted people of faith who lacked the clout to force legislators to respond to their needs, he wrote, noting cases in which a Muslim prisoner won the right to avoid cross-gender pat-downs and Orthodox Jews successfully challenged no-beard policies enforced by police and fire departments.
“Whatever else can be said of them, (the federal) RFRA and state RFRAs have been valuable for religious minorities, who often have no other recourse when the law conflicts with their most basic religious obligations,” Lund said.
Religious freedom for all
Emphasizing that message, instead of resistance to LGBTQ rights, likely helped lawmakers in Montana and South Dakota pass RFRA bills this year, Schultz said.
“My hypothesis is that we’re far enough away from RFRA’s association with gay rights that now it can be seen in a truer light,” he said, adding “I think people have calmed down a little bit about this.”
It’s also possible that the national organizations that pushed back against RFRAs in Arizona, Indiana and other states are just tied up right now in other political fights, wrote Lund in an email.
“A lot of things are happening right now in other areas — voting restrictions and abortion restrictions, for example. Maybe folks have been focused on that,” he said.
Whatever the explanation, Schultz is glad to see the culture war surrounding RFRAs dying down. But he’s also confident that the laws will never again be as popular as they were when Congress crafted the first one.
“I’m not making the claim that they’re going to totally bounce back,” he said.
The problem is — and really always has been — that religious freedom laws can benefit even the most unpopular faith groups and religion-related causes, Schultz said. To support the passage of a RFRA, you must accept that it could someday be used by one of your political enemies, like a landlord who wouldn’t house unwed couples or a pastor helping migrants enter the U.S. illegally.
“That was the challenge back in 1993,” he said. “It’s still the challenge today.”