Written by Don Byrd
RFRA is getting a bad rap these days. The 1993 federal legislation, which has spawned more than a dozen state-law copycats (or near copies), has served the cause of religious liberty well by protecting religious exercise incidentally but substantially burdened by the government. Its measured approach accomplishes that protection while safeguarding against allowing religion to be a trump card against government regulation. Unfortunately, misguided state amendments and hot-button cultural issues have stretched RFRA’s reach, and the rhetoric surrounding it, almost beyond recognition.
Writing in Slate, Emily Bazelon makes the strong argument that RFRA and religious liberty are worth defending, despite the recent spate of bad press both have received.
All of this is giving religious liberty a bad name. In the Hobby Lobby case, groups representing atheists, agnostics, and children are going so far as to argue that RFRA itself is unconstitutional. Their brief, written by Cardozo law professor Marci Hamilton, says this is an “extreme” law that “forces the needs of other believers and nonbelievers to be subservient to the believers invoking RFRA.” But the text of the law isn’t extreme, and up until now the Supreme Court hasn’t interpreted it that way. Instead, the court has gone with a middle-of-the-road reading of RFRA that has promoted respect for religious sensibilities—but stopped short of imposing a significant cost on those other believers and nonbelievers Hamilton’s brief worries about. RFRA strikes a balance, and that’s why liberals as well as conservatives fought for it in the first place.
Read the whole thing.
