- The Washington Times - Tuesday, March 31, 2015

So far the Religious Freedom Restoration Act has never worked as a defense for Christian bakers embroiled in lawsuits over gay weddings, but for a handful of Apache, Muslim and Sikh plaintiffs, it’s been a godsend.

Critics of Indiana’s newly signed RFRA — joined Tuesday by the Arkansas legislature’s passage of a similar bill — have warned that the law provides a “license to discriminate” against gay and transgender people, although that hasn’t been the case in the 22 years since President Bill Clinton signed the federal RFRA in 1993 or in 19 states that passed similar laws before Indiana.

Instead, the federal law allowed Abdul Muhammad, a Muslim prisoner in Arkansas, to grow a half-inch beard. Thanks to the Texas RFRA, Adriel Arocha, a Lipan Apache kindergartner, was permitted to wear his hair long. Kawal Tagore won her case against the Internal Revenue Service after being fired for carrying a kirpan, a small knife worn to remind Sikhs of their commitment to justice.

Three weeks ago, Robert Soto, a Lipan Apache member, had his eagle feathers returned to him by the federal government after they were seized in a 2006 raid by undercover agents. Mr. Soto had filed a lawsuit citing RFRA, arguing that the feathers were sacred and used in religious ceremonies. The 5th U.S. Circuit Court of Appeals ruled in his favor in August.

“We’ve seen a lot of crazy hypotheticals about what could happen if you pass these laws. But if you want to know what’s really going to happen, just look at the history,” said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which handled the Tagore and Soto cases.

“Look at the last 20 years. Look at the federal government and the states that have these laws. You see that they’ve often been used to protect religious minorities and to stop discrimination,” Ms. Windham said.

SEE ALSO: Indiana law against LGBT discrimination stronger than in most states

What’s different is that the RFRA has become entangled with the political debate over same-sex marriage and gay rights. Opponents of the Indiana RFRA warn that the law will allow Christian bakers and florists to refuse to serve same-sex weddings, while social media is rife with comparisons to Jim Crow laws and predictions of “no gays allowed” signs.

Indiana Gov. Mike Pence responded Tuesday by calling on the state legislature to present him with a bill by the end of the week that clarifies the law’s intent, insisting that the measure was never intended to allow discrimination.

At the same time, he said, “I can appreciate that that’s become the perception, not just here in Indiana but all across the country.”

Despite the national outcry, the Arkansas state legislature gave final approval Tuesday to its own RFRA, sending it to Gov. Asa Hutchinson, who is expected to release a statement Wednesday on the measure, and who has said previously he would sign it.

“This bill is about protecting religion, about someone’s right to believe what they want to believe without government interference,” said the bill’s sponsor, state Rep. Bob Ballinger, on KATV in Little Rock.

His support comes despite a statement from Wal-Mart CEO Doug McMillon, who said that the bill, House Bill 1228, “threatens to undermine the spirit of inclusion present throughout the state of Arkansas and does not reflect the values we proudly uphold.”

SEE ALSO: Arkansas sends religious-freedom bill to governor despite Indiana uproar

Wal-Mart, the nation’s largest private employer, is based in Bentonville, Arkansas. The bill is also opposed by Little Rock Mayor Mark Stodola and the state chamber of commerce.

University of Virginia Law School professor Douglas Laycock, who filed a brief with the U.S. Supreme Court in support of same-sex marriage, said that there was “no basis for the wild charges being made against this bill” in Indiana.

“So what kinds of cases are RFRAs really about?” Mr. Laycock said in an email. “They are about churches feeding the homeless; sometimes the city or the neighbors object. They are about Muslim women wearing scarves or veils. They are about Amish buggies. They are about Sabbath observers. They are about church bells.”

He added that, “And usually, the government wins. These laws have been underenforced, not overenforced.”

And so far, Christian business owners refusing to provide services to same-sex weddings haven’t been successful even when states had an RFRA.

Elaine Huguenin, owner of Elane Photography, cited New Mexico’s RFRA, passed in 2000, after being sued by a gay couple, but the state Supreme Court ruled in 2013 that the RFRA only applies to cases in which the government is a party.

That’s not to say a Christian photographer will never win such a case.

Like the other state and federal RFRA laws, the Indiana law prohibits measures that place a “substantial burden” on an individual’s free exercise of religion barring a “compelling government interest.” And, even in those cases, the government must use “the least restrictive means” of advancing that interest.

This standard, known as “strict scrutiny,” was also the judicial review standard established by the liberal Supreme Court of Chief Justice Earl Warren until a 1990 decision, written by Justice Antonin Scalia on peyote use, reversed that, prompting a near-unanimous Congress to pass the federal government’s RFRA to reverse him.

Critics note that Indiana’s law is broader than the rest because it applies “regardless of whether the state or any other government entity is a party to the proceeding,” meaning that the RFRA may be used as a defense in lawsuits brought by private interests — which would apparently include lawsuits filed by same-sex couples against Christian bakers or florists.

“The language reflects the desire to use these laws in a certain way, to be able to discriminate and cause harm,” Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union — which has invoked RFRA laws in the past but opposes the Indiana measure — told The Associated Press.

Then again, the courts are divided on whether RFRA cases require a government defendant, even if the state law was not explicitly worded that way.

Indiana is actually following a precedent set by four federal courts of appeals, which have held that RFRA can be used as a defense in lawsuits brought against nongovernment parties over the enforcement of laws, said Josh Blackman, professor at the South Texas College of Law in Houston.

On the other hand, two federal appeals courts have swung the other way, ruling that the government must be a party.

“There’s a wide-ranging split. Some federal courts of appeals have said that [RFRA] is a defense, some courts of appeals have said it’s not,” said Mr. Blackman. “It’s a difference of opinion here, which is not uncommon. The Supreme Court hasn’t resolved this issue. So Indiana’s position is consistent with what a lot of federal judges have held.”

Even the Justice Department in 2012, under Attorney General Eric H. Holder Jr., stated that Wheaton College in Illinois could raise the RFRA as a defense in a lawsuit against an employee seeking Affordable Care Act contraception coverage, Mr. Blackman noted.

“Again, this isn’t some sort of crazy law out of right field that’s going to revolutionize everything,” he said. “The reaction to this is entirely inconsistent with how the law actually operates.

He said Christians in the wedding business fighting complaints from same-sex couples would be better off making a First Amendment argument instead of dragging RFRA into court.

“It’s a speech issue,” Mr. Blackman said. “When you’re requiring someone to engage in an act of creativity — creating a flower bouquet, photographing a wedding, baking and designing a cake — those are acts of art. In fact, if you ask bakers and photographers, they’ll call themselves artists.”

Attorneys with Alliance Defending Freedom, which has represented Christian business owners in several such cases, have raised the First Amendment issue, although so far the courts haven’t agreed.

The Elane Photography lawsuit was the first to come within earshot of the U.S. Supreme Court, but the justices declined to hear the case.

Still, Mr. Blackman said the federal precedents appear to line up in favor of the religious business owners.

“There’s a long-standing list of [U.S.] Supreme Court cases saying you can’t compel people to speak, and these are cases going way back,” Mr. Blackman said. “And I think those cover the baker and the florist. These are issues of speech, not religion.”

Legal scholars also point out that another wrinkle is that RFRA offers no guarantee that those citing the law in court will prevail.

“RFRA doesn’t mean that religious people always win. It means that you get to go to court and try and strike a balance,” said Ms. Windham. “Sometimes that balance will be struck in favor of religious freedom, and sometimes it will be struck in favor of other interests. And that’s what we’ve seen in the florist cases and the baker cases and other cases — courts trying to strike a balance.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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