This is a guest post by Andrew Seidel. He is an attorney for the Freedom From Religion Foundation.
The long overdue celebration over the decision that makes gay marriage just marriage overshadowed an important piece of news for the secular movement. On June 25, the ACLU announced that it would no longer support the Religious Freedom Restoration Act — the federal law Hobby Lobby used to successfully challenge the contraception provisions of the Affordable Care Act.
The Freedom From Religion Foundation, which I work for, has been opposed to this law for some time because, as Louise Melling of the ACLU put it, “religious liberty doesn’t mean the right to discriminate or to impose one’s views on others.” In April, FFRF asked Connecticut Governor Dannel Malloy and Virginia Governor Terry McAuliffe, both of whom expressed opposition to Indiana’s law, to repeal their own state-level RFRAs. We even ran ads in the New York Times asking for a repeal of the federal RFRA. And until Indiana tried to pass a particularly malicious RFRA and companies like SalesForce, Apple, GenCon, and even the NCAA joined the fight, FFRF was waging a lonely battle. There were a few notable exceptions, such as Katha Pollitt, writing for The Nation, and the groups that signed on to our Hobby Lobby brief. [Ms. Pollitt sits on FFRF’s honorary board.] Our brief to the Supreme Court, singled out by Peabody Award-winning Supreme Court website SCOTUSblog as a “bold challenge,” was the only one of more than 80 in the Hobby Lobby case to argue that RFRA is unconstitutional.
How important is this? Well, very. One popular counterargument FFRF has faced in its battle, which is becoming less lonely by the day, is that when RFRA was passed, everyone, from the Religious Right to the ACLU, supported it. And to this day, everyone, from the Baptist Joint Committee, to the religious ministry/law firm Alliance Defending Freedom, to the media highlights that fact. They all point to RFRA as a miracle that crossed party and religious divides. The ACLU’s support of RFRA gives, or, as we must now say gave, these laws credence.
Undercutting this popular argument in favor of RFRAs is important. But perhaps the most important impact of this announcement will be that the ACLU’s courageous stand will encourage other secular and human rights groups to follow suit. This could be a tipping point.
And isn’t it time? These insidious laws are one of two things. They are either completely superfluous because our First Amendment already protects religious freedom, or they’re a legal justification for discrimination. The First Amendment already protects the freedom of religion and, under its mantle, every species of religion has flourished in this country. RFRAs are therefore unnecessary, unless they have another purpose. The Religious Right is now using these laws to justify discrimination in the name of a god. They make that argument over and over again. Tony Perkins, president of the Family Research Council, has been explicit. He argues that these laws allow discrimination in the name of religious belief, citing the example of Barronelle Stutzman, the Christian who refused to provide flowers for a gay wedding. But even if no court ever buys the “religious freedom as a defense to discrimination” argument, why would we keep laws that justify discrimination — especially when the First Amendment protects what these laws purport to defend?
The ACLU is calling for “Congress to amend the RFRA so that it cannot be used as a defense for discrimination.” But we don’t think that goes far enough to protect citizens. Unlike the First Amendment, the terms of RFRA only give protection to religion and therefore religious citizens. As of now, that protection is not extended to non-religious citizens (who now make up 23% of the population). Favoring religion over non-religion, which the Supreme Court has repeatedly said is unconstitutional, will always be problematic. That’s why FFRF has long argued that RFRA is unconstitutional and should be either repealed or, like the bans on gay marriage, struck down in federal court.