A perennially contentious proposal, this year’s religious freedom restoration bill, HB 17-1013, died a faster, quieter death than in years past. Sent to the state House committee on State, Veterans, and Military Affairs — a Democratic “kill committee” — in January, the bill’s fate was a foregone conclusion.
While the political tumult over the bill declined dramatically, it nonetheless remains a fascinating case study in divergent conservative viewpoints on the topic. Specifically, as the broader issue of LGBT equality rose rapidly in policy discussions over the past decade, some conservatives have seized on religious freedom arguments as a means of pushing back against this movement. However, the theories and language employed in current bills runs contrary to the conservative positions held in decades before.
The progenitor of state religious freedom bills, Congress passed the 1993 Religious Freedom Restoration Act (RFRA) in response to the U.S. Supreme Court’s 1990 Employment Division v. Smith (“Smith”) decision. In Smith, the Supreme Court held that free exercise of religion claims cannot invalidate laws of general applicability neutral toward religion. After an initial influx of similar laws in the 1990’s, the issue seemed to have burned out. But over the last five years, some conservatives reignited the torch in response to increased legal protections for the equal treatment of LGBT community members.
The irony is that conservative icon Justice Antonin Scalia authored Smith.
Justice Scalia not only wrote the opinion, but doubled down when he sided with the majority in City of Boerne v. Flores, a refutation of RFRA. Of course, it shouldn’t have come as a surprise. The majority rejecting RFRA also included conservatives Chief Justice William Rehnquist and Justice Clarence Thomas. The conservative majority ruled that “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance” and found it unconstitutional.
Conservative support for Smith did not just come from justices of the Supreme Court, either. Former Texas Solicitor General and current U.S. Senator Ted Cruz — regularly ranked among the most conservative members of Congress, son of a pastor, and a stalwart advocate for religious liberty — defended Smith in an analysis published in the Harvard Journal of Law and Public Policy. Writing about a case in which the Supreme Court overturned a municipal ordinance that targeted Santeria religious practices, Sen. Cruz found that the case demonstrated just how strong religious freedom protections remained, even absent RFRA. Sen. Cruz wrote that the “holding on its facts, was absolutely correct, as was the Court’s continued reliance on Smith.”
Despite such strong conservative opposition to RFRA and support for the Smith tests, religious freedom bills across the country call for a return to pre-Smith jurisprudence. For example, the legislative declaration for HB 17-1013 claimed Smith “virtually eliminated the requirement that government justify burdens on religious exercise” and demand for a return to tests employed prior to Smith. However, this is misleading. The actual text of the bills goes far beyond the pre-Smith case law.
The “substantial burden” test is fundamental to the framework of religious freedom review. Courts have reaffirmed that time and again, including Justice Scalia as recently as 2015. Yet bills like HB 17-1013 strip the qualifier “substantial” from their language. The resultant proposal expands the sweep of the test far beyond its historic limits. Under it, any burden, no matter how minor, would be a violation. Such a position almost begs for a court challenge.
Next year another bill will likely be introduced, and likely meet the same fate as HB 17-1013. In the interim, it will be interesting to see if the conservative split over it widens.