Further Thoughts on Arizona’s “Religious Freedom” Bill

My colleague Ilya Shapiro has skillfully laid out some points often overlooked in the furor over Arizona’s SB 1062. In particular, the bill is a variation on what’s known as a “mini-RFRA” – that is, a state bill patterned after the federal Religious Freedom Restoration Act (RFRA) of 1993 – and can scarcely be understood outside the context of how RFRAs work, why they managed to sail almost uncontroversially through the U.S. Congress in 1993 with bipartisan support, and how they have since emerged as a serious obstacle to particular policy ambitions such as ObamaCare’s universal employer contraceptive mandate, with a resulting tendency for liberal opinion to swing against them (yet often with a curious reluctance to come right out and say that RFRA itself goes too far).  

A few points I’d add: 

* First, the various religion-and-discrimination bills moving in multiple state legislatures are very different from each other and demand separate analysis. (This Mother Jones account, while strongly opposed to all the bills, is better than most about acknowledging their differences.) The first bill to provoke a national furor was the very extreme measure passed by the Kansas lower house, which would have (among other things) introduced a new legal right for many public servants not to do their jobs and created rights to sue employers for not accommodating anti-gay sentiment. The Republican leadership of the Kansas Senate quite sensibly flagged these incursions on the rule of law and on the freedom of private enterprise as reasons to kill the bill

* What of the Arizona proposal? Eleven leading religion-and-law scholars, including such heavy hitters as Michael McConnell and Douglas Laycock, correct some misconceptions about the bill in this letter reproduced at Power Line. The Arizona bill pushes mini-RFRAs into highly disputed territory by specifying that it applies not just to “government” but to “state action” more broadly, the crucial difference being that it aims to insert a right to religious accommodation as a defense in litigation between private parties arising from state laws. (Contrary to some imaginings, the bill creates a right of attorneys’ fee recovery by prevailing religious-accommodation claimants only when the adverse party is a government.) To confess my biases, as a general matter I like the idea of affording wider religious-liberty defenses in most anti-discrimination statutes applying to private actors. At the same time, doing it this way – by pushing out the boundaries of RFRA to change the playing field of private litigation at one stroke, rather than pause for a debate about how best to address multiple areas and situations – strikes me as fairly sure to generate unintended consequences and unexpected results. When advocates warn Arizona Gov. Jan Brewer she will be sailing the ship of state into uncharted waters if she signs the bill, this is the provision that most makes me think they’re on to something. 

* Why not let the Arizona episode begin a debate about whether RFRAs have gone too far or not far enough? The law’s status as a bright new idea in the Clinton era doesn’t mean it should be immune from renewed scrutiny today with the perspective two decades of experience affords. At best, speaking as one not unsympathetic with its aims, it was and is at best a very blunt instrument, one that tends to privilege sincere religious belief over equally sincere belief grounded in something other than religion. It’s entirely conceivable that it and its state imitators go too far as applied to some subjects, yet perhaps not far enough as applied to others. 

Such a debate might prove more productive than the usual bitter round in the culture wars.