The controversy over Indiana's religious liberty statute raises again the difficult issue of how to balance religious freedom and laws that proscribe a general standard of conduct. This problem has been with us since at least 1878 when the United States Supreme Court decided that states could prohibit polygamy, even though Mormons argued that the law interfered with their religious beliefs.
In 1990, the Supreme Court, in an opinion involving the use of peyote in a Native American religious service, held that laws restricting religious practices need only meet the standard of rationality that applies to most laws. Because this opinion was interpreted by many to threaten religious liberty, President Bill Clinton urged Congress to pass the Religious Freedom Restoration Act (RFRA), which became law in 1993. It is this law that is the model for the Indiana statute as well as laws in about 20 other states. The basic idea was to require that laws restricting religious liberty meet a "compelling interest" test, in other words, to insist the government cannot burden religious liberty unless it has a very good reason and does it in the least burdensome way possible. The problem is that this approach leaves the difficult balancing to the courts. The publicly accountable legislature can avoid doing the hard work of striking the balance itself.
When RFRA was enacted, there was little concern about a serious conflict with civil rights laws or any other laws for that matter. During the 1990s however, the movement to protect gay rights gained steam. Cities and some states began to enact gay rights laws, and support for gay marriage soon grew rapidly. Few changes in social attitudes have come so quickly and in such a sweeping way. Of course, these changes in attitudes are not universal, which is why there are bakery owners who do not want to prepare a cake for the wedding of a gay couple.
In 1997, the Supreme Court struck down the part of RFRA that applied to state laws. The Clinton administration resolved to work with Congress to rescue this part of RFRA, but by this time the conflict between religious liberty and civil rights laws was evident to all. We held meeting after meeting in the White House trying to figure out a way to strike the balance. The result was a much more tailored law in 2000, called the Religious Land Use and Institutionalized Persons Act, which provides special protections for church property and persons in prison. This time, Congress was specific about the "accommodations" that should be granted for religious beliefs and practices. It did not hand the balancing problem to the courts.
The lesson from this history is that broad statutes that are intended to protect religious liberty but leave it up the courts to decide what religious liberty is and which social interests should override it are cop-outs by the legislature. The legislature should decide what specific accommodations it wants to grant. For example, if a state wants to pass a statute exempting landlords or retail stores from gay rights municipal ordinances, it can, but the public would know what it is doing. The interests on both sides could express their views, and the final law would be the result of an open political process.
Our country has traditionally supported religious liberty, and we have a Constitution that requires us to do so. But sometimes a broad notion of "religious liberty" leads to a clash with broadly applicable laws that we support as well. Balancing those values is difficult, but it is a task for Congress and state legislatures, not the courts.
Edward Correia is an adjunct professor at American University's Washington College of Law and a former special counsel to President Clinton for civil rights. His email is email@example.com.