Justice Scalia predicted ‘anarchy,’ but three decades later, religious freedom law is thriving

In a day when the major political parties can’t agree among themselves, much less with each other, it’s hard to imagine a broad, bipartisan consensus on any issue. Yet 30 years ago this week, Democrats and Republicans united to override something the Supreme Court had done. Their bill, the Religious Freedom Restoration Act (RFRA), was signed by President Clinton.

This may sound like a fairy tale, but it has operated more like a science experiment. Since its enactment, RFRA has served as a bedrock protection for religious groups ranging from Apache feather dancers to Catholic religious sisters. Although some predicted that RFRA’s standard would be a recipe for anarchy, it has instead proven that religious liberty works remarkably well in practice.  

RFRA has protected Captain Singh, a Sikh soldier who wanted to serve his country and also wear his religiously mandated beard; the Greens, a Christian family who run Hobby Lobby stores and were threatened with hundreds of millions of dollars in fines for living out their faith; Pastor Soto, a Lipan Apache whose sacred eagle feathers were confiscated by the feds; and the Little Sisters of the Poor, a Catholic order of nuns who faced millions in fines unless they violated the tenets of their Catholic faith.  

RFRA was Congress’s reaction to the Supreme Court’s 1990 decision in Employment Division v. Smith, which said that the government can burden religious exercise, so long as it uses a neutral, generally applicable law to do so. The decision was written by none other than Justice Antonin Scalia, who is rightly recognized as the conservative legal giant who brought originalism and textualism into the mainstream. Scalia wrote that if every person could seek a religious exemption from every law, it would be “courting anarchy.” To avoid that result, the court limited free exercise claims to laws which selectively target religion or are riddled with exemptions for non-religious reasons.  

The Smith decision was wildly unpopular in 1990, prompting swift bipartisan action from Congress. Since then, however, Smith’s star has risen in progressive circles, who have branded RFRA and similar rules as a “license to discriminate.” The ACLU has reversed course on RFRA, just as it has on free speech, allowing progressive nondiscrimination interests to trump civil liberties outlined in the First Amendment.  

Amid all this, RFRA has thrived. Attempts to amend it in Congress have failed. And even those are attempts to limit RFRA — not to repeal it outright. Religious people on the political right and left, and many religious groups, have employed RFRA and similar laws to protect their religious free exercise.  

The Little Sisters, for example, got an exemption from a mandate that would have forced them to provide contraceptives in their health insurance plans. The sky didn’t fall.

Hobby Lobby secured the same exemption, and major corporations didn’t rush to discover new religious objections to laws they didn’t like. In fact, some of the nation’s largest corporations, including Apple, Google and Nike, have asked the Supreme Court not to overturn Smith, because they don’t want to see more people get religious exemptions.

The results for everyone else?  Not “anarchy.” RFRA applies to everything the federal government does — statutes, administrative rules, and all kinds of applications of the law. Its companion statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), applies to jails and prisons nationwide. The Supreme Court has interpreted RLUIPA to make sure prisoners can wear religiously mandated beards and have the comfort of clergy at the moment of execution. The result has not been chaos. In fact, most prison systems were already making these sensible accommodations without being taken to court.

RLUIPA also applies to local land-use actions, which are famously byzantine and often disfavor non-profit houses of worship. RLUIPA has allowed a Sikh gurudwara in California and a Unitarian-Universalist church in Ohio to be built over local government opposition.

Not only that, but 34 states have RFRA-like protections of their own. Twenty-four states have adopted state laws modeled on federal RFRA. In another ten states, the state supreme court has opted for some form of heightened scrutiny for laws that burden religious exercise.

Despite the wild predictions that were made when some of these RFRAs were adopted, it turns out that these statutes work well. Religious people are accommodated when they need to be, and courts can test the evidence and reject fake claims — or dangerous ones — when they need to. States like Connecticut, Massachusetts and Illinois all have RFRA-type standards, and none has yet descended into theocracy.   

This isn’t surprising. In the democratic process, popular religious beliefs are likely to be accommodated. That’s why the Civil Rights Act ensured that religious organizations could still consider religion in hiring, and why school districts commonly give excused absences — or close altogether — on religious holidays. Even during Prohibition, communion wine remained legal.

Laws that restrict religious exercise tend to fall on religious beliefs that are not well known or are unpopular with elected officials. That’s why many of today’s threats to religious liberty come from religion-hostile regulations, such as the HHS Mandate, which are created behind closed doors by bureaucrats unaccountable to voters.   

Our democratic system often does the right thing, but sometimes it fails. And when that happens, RFRA makes sure that our fundamental rights are protected. It’s the rare situation where we run a large-scale policy experiment to see if a judicial standard works out. It turns out that the Smith standard was too stingy, and the RFRA standard works well.

Better religious freedom protections aren’t just good for the people who get to use them — although my clients are certainly grateful for them. They are good for us as a nation, where we learn to live and work side-by-side with people of different faiths. We respect and accommodate each other where we can and live out our founding promise as a nation that respects everyone’s religious freedom.

Lori Windham is vice president and senior counsel at the Becket Fund for Religious Liberty, which represented most of the litigants with religious freedom claims mentioned in this oped.