Religious rights may bring “nullification”

Two Native Americans, fired from their jobs at a rehab center because their blood tested positive for mescaline, applied for unemployment benefits.  Despite explaining the drug resulted from their religious use of peyote, they were rejected.

They sued the state of Oregon, and their case went to the U.S. Supreme Court.  Though it recognized the religious use of peyote by some Native Americans, the court rejected their appeal.  It said benefits would be denied to anybody with mescaline in their blood, so the Indians were not subject to religious discrimination.

The Court’s decision relied on a standard that had evolved over decades, allowing religious beliefs to be overridden, so long as the law applied equally and did not target certain religions.

When members of Congress learned of this case, virtually all of them agreed that this interpretation of government power went too far in denying religious rights.  So, in 1993, Congress almost unanimously adopted the Religious Freedom Restoration Act.

Under this law, there must be a “compelling government interest” that justifies overruling religious practices.  Mere neutral application of a law was no longer enough.

The general effect of the new law was to “restore” (hence the use of the word “restoration”) an older Supreme Court decision and invalidate the later interpretation that made it easier for government to overrule religious beliefs.

Congress also said that this requirement would apply to actions by both federal and states governments.  In 1997, the Supreme Court ruled that the constitutional provision allowing the federal government to impose standards on states did not cover this law.

A state could pass its own version of this law to ensure that its government accorded the same respect to religious belief as the federal government.  Some, but not all, states enacted such laws.

Religious freedom is guaranteed in the First Amendment to the Constitution.  Like other protections of the Bill of Rights, it is a right to be free from excessive government interference.  As matters now stand, government can only impinge on religious rights if there is a “compelling government interest” – an interest higher than unfettered religious practice.

The law came before the Supreme Court again in the Hobby Lobby case.  Hobby Lobby is a company owned by just a few people, whose religious belief opposes abortion.  They did not want to provide abortion coverage in their health insurance program or even to tell employees where else they could get such coverage without charge.

In 2014, the Court said that, because the employees could get the coverage, the company should not be forced to provide it or inform them of its availability.  In other words, there was no “compelling government interest,” because an alternative existed that left the owners’ religious beliefs untouched.

Since the adoption of RFRA, some have interpreted it to mean they could refuse to obey any law they claimed was contrary to their religious belief.  They would not have to seek judicial approval for their action.  The government would have to take them to court if it thought they could be forced to act because of a significant government interest.

To some, this development opened the door to “nullification,” the ability of people to refuse to obey the law, simply because they asserted a conflicting religious principle.  Thus, RFRA became part of the arsenal of weapons to be used by people who thought government had become too powerful.

The underlying conflict emerged when Indiana passed its own version of the law.  The state has no anti-discrimination law and hence no resulting “compelling government interest,” as do the United States and most other states, allowing it to limit a claim of religious rights. 

Opponents charged Indiana had enacted a license to discriminate and to resist government.

Gays and lesbians protested against the Indiana action.  Some national and state Republican leaders stated clearly that the purpose of the law was to allow businesses to deny at least certain services or products to homosexuals.

After a national outcry, in which major businesses opposed the new law, Indiana retreated and modified the law to ensure it could not be used to discriminate against LGBT.

Still, what had happened in the 22 years since the law was adopted was that it had shifted from a limit on government to a new right for individuals to refuse to obey the law.

Some states are considering simply refusing to apply federal laws they do not like.  RFRA may be the beginning, not the end, of new battles over “nullification,” the way to destroy or drastically limit federal government authority.