In past articles, we have looked at the trend in the law relating to society’s ever increasing acceptance of sins such as homosexuality. The law has changed from the point that homosexuality was illegal, to the point that homosexuals are a protected class. Individuals who refuse to provide goods or services to homosexuals on the basis of conscience may open themselves up to legal actions. The government also increasingly makes requirements that might conflict with the religious beliefs of citizens. In the past, lawmakers who were concerned about government imposition upon religion passed legislation aimed at protecting the freedom of religion. These laws are called Religious Freedom Restoration Acts (RFRAs). An amendment to such a piece of legislation recently passed by the legislature in Arizona created a national media firestorm. We will look at the issues surrounding this legislation, the opposition to it, and the implication for the church.
Although RFRA’s have gained attention in the news only recently, many have been around for some time. The federal government passed the federal Religious Freedom Restoration Act in 1993, with unanimous support in the House of Representatives and near unanimous support in the Senate.1 Previously, cases had held that the government could not burden religion unless there was a compelling government interest.2 A trend developed in United States Supreme Court cases that allowed the government to enact laws that only incidentally burdened a person’s exercise of religion as long as the law generally applied to all citizens. The RFRA was enacted to reverse that trend and return to the position that a government is required to demonstrate a compelling government interest in any legislation that interferes with or burdens one’s exercise of sincerely held religious beliefs.
A subsequent ruling by the United States Supreme Court held that RFRA was unconstitutional when applied to state and local governments, and that the federal government did not have the authority to make laws that restrict local governments in this context.3 However, the federal RFRA still applies to actions taken by the federal government itself. In the past, the public has paid little attention to the federal RFRA, as the federal cases affected by RFRA have been primarily cases dealing with the exercise of religion by Native American churches. In past articles under this rubric, we have discussed these cases and the fact that RFRA could have more significance for believers in the future as changes in the law start to affect traditional Christianity.4 This has proven to be the case, as demonstrated by the current litigation pending before the United States Supreme Court involving the Affordable Care Act. In that case, Hobby Lobby and other businesses are challenging the federal mandate under the Affordable Care Act that requires them to provide contraception for employees, including abortive contraception.5 Lord willing, we will discuss that case in greater detail in a later article, after the Supreme Court issues its decision.
Eighteen states have passed their own version of RFRA. Many of these statutes follow the same principle as the federal RFRA, and require state and local governments to have a compelling government purpose for any actions or legislation that restrict individual citizens’ free exercise of sincerely held religious beliefs. Although the federal RFRA was declared unconstitutional as it purported to apply to state and local governments, this ruling does not apply to the state RFRAs, since they are imposed upon the state governments by the states themselves, instead of by the federal government. Many of these RFRA statutes have been around for years, but because they have not been the basis for any high profile court rulings, they have not garnered much attention.
The general apathy towards state RFRAs changed recently when the Arizona legislature passed an amendment to its RFRA. Arizona had adopted an RFRA nearly fifteen years ago, but recently a bill was proposed that basically sought to clear up two questions that had arisen under other RFRAs. The first question is a question raised in the Hobby Lobby case, which is whether a person operating a business can assert RFRA protection when a law requires them to violate their religious principles in their business. The second question is whether RFRA protects a person if another private citizen brings a legal action, based on state law, demanding that they violate their religious beliefs. Several cases have made the news in recent years that illustrate the issue raised in this second question. In one, a photographer was sued for refusing to take wedding photos of a same-sex couple. In another, a baker who refused to bake a wedding cake for a homosexual couple was sued. In these cases, the claim is generally that state or local law prohibits discrimination against homosexuals, and that the business owner should be forced to provide goods or services to the same-sex couple or be penalized. The amendment to Arizona’s RFRA would have ensured that the answer to both questions was affirmative.
The Arizona amendment passed the legislature, but the bill was widely portrayed in the national media as simply allowing business owners to discriminate against gays.6 In response to the media’s portrayal, groups began to boycott the state, and the National Football League even threatened to cancel its plans to hold the Super Bowl in Arizona next year. The bill was ultimately vetoed by Governor Jan Brewer due to the immense public pressure. Since the backlash in Arizona, similar RFRA legislation in other states has been put on hold.
In light of the outcry against the Arizona RFRA amendment, we will look at what the bill actually did, in contrast to the way it was portrayed by its opponents. The first observation we can make is that Arizona had an RFRA in place for nearly fifteen years prior to the amendment. The amendment was designed simply to clarify that its protections extended to citizens acting in their capacity as business owners, and that they also extended to citizens who were sued by other private citizens.
The other interesting observation about what the Arizona bill did not do is that it did not say that a person claiming RFRA protection would win a legal battle. RFRA simply requires the balancing between religious beliefs and the government’s interest in enforcing its laws. If a person discriminated against a gay person, that person would first have to demonstrate that the discrimination was due to a sincerely held religious belief. The court would then weigh whether there was a substantial burden on that person’s exercise of religious belief. The court might say that there is not substantial burden on a grocer who has to sell groceries to a gay person because the person’s sexual orientation is not evident from his grocery buying. On the other hand, a photographer might be excused from photographing a gay wedding because his presence there could be construed as condoning a wedding to which he is opposed.
The fact that this legislation was ultimately vetoed and similar bills in other states were tabled, all due to inaccurate portrayals in the media, is troubling. The portrayals of the effect of this legislation were so erroneous that a group of eleven law professors wrote to Governor Brewer, urging her not to veto the bill, and stating that the bill had been “egregiously misrepresented.”7 These professors noted that the bill simply clarified the Arizona RFRA, and that much of the Arizona RFRA was copied verbatim from the federal RFRA. The irrational hostility towards this bill underscores the growing hostility of the world toward the biblically-based beliefs of the church.
Why would opponents expend so much energy opposing a bill that merely clarifies a statute that has been on the books for nearly fifteen years? Even some in the homosexual community have noted the reaction to the bill. Political commentator Tammy Bruce, who is homosexual herself, described the veto of the Arizona bill as “alarming.” The following excerpts are from her explanation of the reason for the opposition’s reaction:
Having been a liberal “community organizer” in my past, I immediately recognized the strategy being employed. This is an effort to condition the public into automatically equating faith with bigotry. . . .
Horribly, the gay civil rights movement has morphed into a Gay Gestapo. Its ranks will now do the punishing of those who dare to be different or dissent from the approved leftist dogma.
Why would the Gay Gestapo suddenly need to convince everyone that any act of faith must be viewed suspiciously as discrimination and “hate?” Forcing a bakery, Hobby Lobby, Chick-fil-A or a photographer to either violate their religious beliefs or be destroyed is simply a test run. The real target is the church and temple. If the left can convince our society to force people of faith to violate their sacraments in the name of “equality,” why would we allow that to stop at the church door?8
Scripture tells us that Ms. Bruce is correct in this regard, that the church is the ultimate target and that the world will eventually silence the church, the “two witnesses” described in Revelation 11. They will be successful when they are able to convince the courts that the government has a compelling state interest in preventing our churches from preaching against sins such as homosexuality. Our schools will be even more susceptible, because the First Amendment Freedom of Religion applies to churches more clearly than to schools.
In the meantime, we can expect cases under the state and federal RFRAs to become more common. The upcoming decision from the Supreme Court in the Hobby Lobby case may clarify some issues at the federal level. Since the federal RFRA does not apply to state and local governments, the Supreme Court’s decision won’t directly affect state cases, but state courts may tend to follow the Supreme Court’s lead.
In summary, the legal discussion in the United States has shifted so that the question is no longer whether homosexuals can marry or individuals can use abortive contraception. Instead, the question is whether Christians can be forced to participate in gay weddings as photographers or bakers, and whether Christian business owners can be forced to buy abortive contraceptives for their employees. We have gone from twenty years ago when the federal RFRA was passed nearly unanimously and signed into effect by a Democratic President, to a point that people are driven to a frenzy by its provisions. We can take comfort in the fact that all this unfolds as we were told it would in Scripture, and only according to the will of our heavenly Father.
1 Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993); 42 U.S.C. §2000bb et seq.
2 Sherbert v. Verner, 374 U.S. 398 (1963).
3 City of Boerne v. Flores, 521 U.S. 507 (1997).
4 Brian Van Engen, “How Far Does Freedom of Religion Extend?” Standard Bearer, Volume 84, Number 5 (2007).
5 Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013).
6 Fernanda Santos, “Arizona Governor Vetoes Bill on Refusal of Service to Gays,” New York Times, Feb. 26, 2014 at A1.
7 John McCormack, “Top Law Professors: Arizona Religious Freedom Bill has Been ‘Egregiously Misrepresented’.” The Weekly Standard, February 26, 2014.
8 Tammy Bruce, “Why the Veto of Arizona’s Religious Freedom Bill is Alarming,” Washington Times, Feb. 28, 2014.