ACLU: Why we can no longer support the federal ‘religious freedom’ law
The RFRA was passed in 1993 after two Native Americans were fired from their jobs and denied unemployment benefits because they used peyote, an illegal drug, in their religious ceremonies. The Supreme Court rejected a claim they had brought under the Free Exercise Clause of the First Amendment, but Congress disagreed with the justices and enacted the RFRA with near-unanimous support.Hey, remember when the ACLU supported the American Nazi Party's right to demonstrate in Skokie? Good times!
The ACLU supported the RFRA’s passage at the time because it didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others. As the events of the past couple of years amply illustrate, our fears were well-founded. While the RFRA may serve as a shield to protect Singh, it is now often used as a sword to discriminate against women, gay and transgender people and others. Efforts of this nature will likely only increase should the Supreme Court rule — as is expected — that same-sex couples have the freedom to marry.
In the Hobby Lobby case last year, a Supreme Court majority blessed the use of the RFRA by businesses to deny employees insurance coverage for contraception, a benefit guaranteed by law, if those businesses object on religious grounds and there is some other means of furthering the government’s interests. Religiously affiliated nonprofit organizations such as universities are taking the argument further. They invoke the RFRA to argue not only that they should not have to provide insurance coverage for contraceptives, but also that they should not even have to notify the government that they refuse to do so because, they maintain, notification would trigger the government to intervene to ensure coverage.