State Religious Freedom Laws: Misunderstood or Malign?

Bettina Krause May/June 2024
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Iowa has become the latest state to wade into the controversy surrounding state-level Religious Freedom Restoration Acts (RFRAs). Governor Kim Reynolds signed the Iowa RFRA into law on April 3, saying it would uphold “ideals that are the very foundation of our country.” Twenty-seven U.S. states have passed similar laws, all of which are modeled on a thirty-year-old federal version of RFRA.

The original federal RFRA, passed by Congress in 1993, was enthusiastically embraced by both Democrats and Republicans. It received almost unanimous support in Congress and was signed into law by President Bill Clinton. The law was aimed at strengthening religious freedom protections for people of every religion. It said, in part, that the government can’t limit someone’s religious practice—even accidentally—unless it’s pursuing a “compelling governmental interest” in the least burdensome way possible.   

Three years later, however, the U.S. Supreme Court dealt a blow to the federal RFRA, ruling that it only restrained federal actions, not state government actions. In response to that decision, many states have since passed their own version of RFRA to ensure strong state-level protection for religious freedom.

Why are these laws controversial? Detractors of RFRAs claim they open the door to discrimination against members of the LGBTQ community. They argue that people who hold traditional religious beliefs about human sexuality can use RFRAs as a “license to discriminate.”

However, supporters of RFRAs say this argument distorts the purpose and actual impact of these laws. They point to the essential protection RFRAs provide in a wide range of areas, far beyond conflicts involving religious practice and LGBTQ rights. Through the years, RFRAs have been used by members of many different faiths—from a Native American child whose school forced him to cut his hair, to a Sikh woman who wanted to carry her blunted ceremonial knife, or kirpan, in the workplace, to Muslim women forced to remove their hijab, or head covering.

Supporters of RFRA also point to data showing that these laws do not operate as a “religious trump card” that guarantees a win for the religious claimant in every case. RFRAs provide a way for people of faith to ask courts to hear their claims, but that doesn’t mean they will prevail. Studies show that, more often than not, those asserting a religious exemption under a RFRA will fail.

Religious Freedom for Abortion?

An Indiana lawsuit challenging a state abortion law shows that not all disputes involving state-level Religious Freedom Restoration Acts are motivated by traditionally conservative religious concerns. Two years ago, a group of five women, four of whom are Jewish, challenged Indiana’s broad abortion ban, saying it interferes with their right to seek an abortion in circumstances where their sincerely held religious beliefs would direct them to do so.

In a unanimous decision issued in April, three judges of the Indiana Court of Appeals ruled in favor of the women. They upheld a preliminary injunction granted by a lower court, agreeing that, under Indiana’s RFRA, the women can claim a religious exemption from the abortion ban.

Doing the Lord’s (Secular) Work

When religious charities feed the hungry or provide shelter for the homeless, are they engaged in faith-based work or secular work? According to a court in Wisconsin, the answer is “secular.” The Wisconsin Supreme Court ruled in March that Catholic Charities Bureau, which provides support to disabled, low-income, and elderly people, did not operate “primarily for religious purposes”—even though its activities are an expression of its religious beliefs. For this reason, the court said, the Catholic agency cannot claim a religious exemption from Wisconsin’s unemployment tax.

Although the immediate impact of this decision is limited to Wisconsin, religious freedom advocates say the court’s reasoning raises serious concerns for the many thousands of religious charities in communities across the nation that provide a wide variety of social services. Attorneys for Catholic Charities Bureau say they plan to appeal the decision to the U.S. Supreme Court.

A Delicate Dance: Federal Funding for Faith-based Social Services

The Biden administration has tweaked regulations governing the use of federal funds to pay for faith-based social services. Under the Trump administration, the regulations were modified to make it easier for faith-based organizations to win government contracts to provide services such as care for the elderly, food banks, job training, and homeless and domestic violence shelters.

The new Biden regulations, which went into effect in April, retain some of these Trump-era provisions. For instance, the government cannot discriminate against faith-based organizations when awarding government funding. Also, faith-based organizations that receive federal funds are free to continue making hiring and firing decisions based on religious criteria.

However, the new Biden regulations also protect against the religious coercion of those receiving services from faith-based organizations. When a faith-based social service organization accepts government funds, it cannot discriminate against those it serves—it must provide services without regard to an individual’s religion or their refusal to participate in religious activities. The new regulations also prevent faith-based organizations from using government money to pay for religious teaching or religious activities.

Religious organizations play an outsize role in delivering social services in America. A 2021 study conducted by The Bridgespan Group found that faith-inspired organizations in the United States account for 40 percent of social safety net spending.

Article Author: Bettina Krause

Bettina Krause is the editor of Liberty magazine.