State legislatures in Iowa, Utah, and Georgia have joined the movement to pass state laws protecting religious freedom. Commonly known as Religious Freedom Restoration Acts, these laws should be fairly uncontroversial. They simply ensure the free exercise of religion against government interference. Yet, the laws are being labeled by opponents as attempts to foster discrimination.
Search the internet for news about “religious freedom restoration acts,” also known as RFRAs, and the results might lead one to conclude that some far-right religious plot was afoot. Typical headlines include, “Human rights campaign strongly condemns the West Virginia legislature for hastily passing dangerous religious refusal bill, calls on gov justice to veto bill” and “Religious liberty steps too far, could destroy the common good if we let it.”
What is going on here? What is a RFRA anyway? Is it a legitimate protection of religious liberty or a license to discriminate?
Let’s begin with some history. The U.S. Supreme Court in 1990 held in Employment Division v. Smith that a law is constitutional under the free exercise clause of the First Amendment if it is “facially neutral and generally applied” — even if that law, in fact, burdens religious exercise. The decision effectively allows government actions to burden religious exercise, as long as the burden is applied to religious and nonreligious persons alike.
