Recognition of Native American sacred sites in the United States

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Protest at Glen Cove sacred burial site

 

The Recognition of Native American sacred sites in the United States could be described as "specific, discrete, narrowly delineated location on Federal land that is identified by an Indian tribe, or Indian individual determined to be an appropriately authoritative representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion". The sacred places are believed to "have their own 'spiritual properties and significance'". Ultimately, Indigenous peoples who practice their religion at a particular site, they hold a special and sacred attachment to that land sacred land. 

Among multiple issues regarding the human rights of Indigenous Peoples is the protection of these sacred sites. During colonization, Europeans claimed governance over the lands of numerous native tribes. After decolonization, Indigenous groups still fought federal governments to regain ownership of their ancestral lands, including the sacred sites and places. This conflict between the Indigenous groups has risen in the United States in recent years and the rights to the protection of sacred sites has been discussed through United States constitutional law and legislature. 

The Religion Clauses of the First Amendment assert that the United States Congress has to separate church and state. The struggle to gain legal rights over the Glen Cove burial grounds in California is among many disputes between Indigenous groups and the federal government over sacred lands.

United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations in 2007. The declaration emphasizes the right of Indigenous peoples, some of which include the protection of sacred sites and their religious practices. Articles 11, 12, and 25 of the Declaration specifically addresses these rights.

Article 11

Article 11 of the Declaration states:

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12

Article 12 of the Declaration States:

1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 25

Article 25 of the Declaration states:

1. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Applying the United States Legal System

Religion Clauses

Indigenous peoples in the United States argued that they have the right to protect sacred sites on the grounds of religious freedom. The Religion Clauses of the First Amendment have been two main documents discussed in the dispute of sacred sites protection.

Free Exercise Clause & Establishment Clause

The Free Exercise Clause and the Establishment Clause prevents the United States federal government from establishing a religion by emphasizing the separation of church and state. However, the basis of the Establishment Clauses causes a problem with regards of the protection of religious practices of religious liberties by the federal government.

Article VI of United States Constitution

While the Religious Clause may puts limits on the actions of the federal government with regards to sacred sites protection, Article Six of United States Constitution require Congress to treat “’Indian affairs as a unique area of federal concern’”. Any legal relationship between both parties is treated with special consideration in the basis that Indigenous peoples have become dependent on the United States government after the land was taken from them. As John R. Welch et al. states, “the government ‘has charged itself with moral obligations of the highest responsibility and trust’”. The federal government has a responsibility to maintain the agreements it made with the Indigenous peoples through the treaties. The federal government should “manage Indian trust lands and their bounties in the best interests of beneficiaries”.

American Indian Religious Freedom and Restoration Act

The American Indian Freedom and Restoration Act, or the American Indian Religious Freedom Act (AIRFA), was passed by congress in 1978. The act was passed to recognize Indigenous people’s religious practices by not limiting access to sacred sites. The AIRF also obliges federal agencies to administer laws to "evaluate their policies in consultation" with Indigenous groups to assure that their religious practices are protected. Nonetheless, Arizona Democratic Representative Morris K. Udall who cosponsor of AIRFA asserted that the Act does "not create legal rights" and "'depends on Federal administrative good will'" for it to be applied. Consequently, Indigenous groups are not able to effectively use AIRFA in their fight against public land management agencies.

Religious Freedom Restoration Act

The Religious Freedom Restoration Act (RFRA) prohibits the federal government from restricting or burdening a person's exercise of religion. Under the RFRA, a plaintiff can present a case by showing that the federal government's actions burdens his ability to exercise his religion. Still, although the law is not a procedural law and protects the free exercise of minority religion, it does not protect religious activities conflicting with government's land use.

National Environmental Policy Act

The National Environmental Policy Act (NEPA) is a national policy that promotes better environmental conditions by preventing the government from making damaging the environment. This Act relates to the sacred sites protection because it promotes and encourage a "harmonious" relationship between humans and the environment Furthermore, because this Act is a procedural law, those who bring a suit to the law must "allege a legal flaw in the process the agency followed to comply with NEPA such that the agency's final decision was reached without a complete understanding of the true effects of the action on the quality of the environment.

National Historic Preservation Act

The National Historic Preservation Act (NHPA) is procedural law that a implements "a program for preservation of historic properties across the United States for reasons including the ongoing loss and alteration of properties important to the nation's heritage and to orient the American people to their cultural and historical foundations".

Executive Order 13007

On May 24, 1996, President Bill Clinton issued Executive Order 13007. Under this order, executive branch agencies are required to: "(1) accommodate access to and ceremonial use of Indian sacred sites by religious practitioners and (2) avoid adversely affecting the physical integrity of such sites". This order holds management of Federal lands of taking the appropriate procedures to ensure that Indigenous peoples governments are involved in actions involving sacred sites.

Glen Cove (Ssogoréate) Sacred Burial Sites

Protesters at Sogorea Te (Glen Cove) on Day 98—Natives gain jurisdiction of sacred sites and ancestral lands

 

Glen Cove, also known as Sogorea Te or Ssogoréate, is located in Vallejo, California and is a ceremonial and burial ground for native tribes living near the area for over 3,500 years. These tribes include the Ohlone, Patwin, Miwok, Yokuts, and Wappo. The Greater Vallejo Recreation District (GVRD)and the City of Vallejo wanted to turn the burial ground into a public park since 1988. The construction on the site requires removing the burials and sacred objects. The affected Indigenous tribes fought against the developing the land, claiming that doing so is a violation of their human and religious rights. They insist that the site means more to them than the members of the public, saying, "It is one of the few surviving remnants of our history on this land."

In protest of the GVRD development, The Protect Glen Cove Committee and the Board of Directors of Sacred Sites Protection (SSP&RIT) called for Indigenous activists to assemble at Glen Cove. Beginning April 14, 2011, Indigenous tribes and supporters began occupying the area by organizing daily spiritual gatherings and ceremonies.

On July 19, 2011, after 98 days of occupation and spiritual ceremonies, the Committee to Protect Glen Cove announced that the Indigenous tribes have won the jurisdiction over the land. The Yocha Dehe and Cortina tribes established a cultural easement and settlement agreement, which grants the tribes "legal oversight in all activities taking place on the sacred burial grounds of Sogoreate/Glen Cove".

American Indian Religious Freedom Act

From Wikipedia, the free encyclopedia

American Indian Religious Freedom Act

Long title	Joint resolution American Indians Religious Freedom
Acronyms (colloquial)	AIRFA
Enacted by	the 95th United States Congress
Citations
Public law	95-341
Statutes at Large	92 Stat. 469
Codification
Titles amended	42 U.S.C.: Public Health and Social Welfare
U.S.C. sections created	42 U.S.C. ch. 21, subch. I §§ 1996 & 1996a
Legislative history
Introduced in the Senate as S.J.Res. 102 by James Abourezk on December 15, 1977 Committee consideration by Senate Indian Affairs Passed the Senate on April 3, 1978  Passed the House on July 18, 1978 (in lieu of H.J.Res. 738, 337–81) with amendment Senate agreed to House amendment on July 27, 1978 () Signed into law by President Jimmy Carter on August 11, 1978

The American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 (Aug. 11, 1978) (commonly abbreviated to AIRFA), codified at 42 U.S.C. § 1996, is a United States federal law, enacted by joint resolution of the Congress in 1978. Prior to the act, many aspects of various Native American religions had been prohibited by law.

It was enacted to return basic civil liberties, and to protect and preserve for Natives their inherent right of freedom to believe, express, and exercise the traditional religious rights and cultural practices of Native Americans, Eskimos, Aleuts, and Native Hawaiians. These rights include, but are not limited to, access to sacred sites, freedom to worship through ceremonial and traditional rites, and use and possession of objects considered sacred.

The Act required policies of all governmental agencies to eliminate interference with the free exercise of Native American religion, based on the First Amendment, and to accommodate access to and use of religious sites to the extent that the use is practicable and is consistent with an agency's essential functions. It also acknowledges the prior violation of that right.

Passage

American Indian religious practices have often been prohibited by existing federal laws and government policies. There have been three general areas of conflict. Firstly, American Indians did not have access to a number of sacred places that the tribes had traditionally used in religious ceremonies. Native American religious practices often came into conflict with the idea that American public lands exist for the use and benefit of the American people. The results of the passage of the Indian Removal Act and the General Allotment Act were the displacement of hundreds of tribes, including the Five Civilized Tribes of the southeastern United States, and the forced assimilation of Native American families into agricultural settler societies.

The second conflict was the possession by tribal members of ceremonial items that are restricted under United States law, such as eagle feathers or bones (under laws to protect threatened species), or peyote, a ritual plant spirit and restricted substance. The conflict lies in the fact that items such as peyote are integral parts of ceremonies practiced by members of churches such as the Native American Church. The importance of eagle bones for use in traditional religious ceremonies has been repeatedly cited in cases involving Indian claims on hunting and fishing rights to allow tribal members to hunt for eagles.

The third general area of conflict was an issue of interference. Sacred ceremonies were sometimes subject to interference from overzealous officials or curious onlookers.

The act acknowledged prior federal infringement on the right of freedom of religion for American Indians by denying them their First Amendment right of "free exercise" of religion.

President Jimmy Carter said, in a statement about the AIRFA:

In the past, Government agencies and departments have on occasion denied Native Americans access to particular sites and interfered with religious practices and customs where such use conflicted with Federal regulations. In many instances, the Federal officials responsible for the enforcement of these regulations were unaware of the nature of traditional native religious practices and, consequently, of the degree to which their agencies interfered with such practices.

This legislation seeks to remedy this situation.

Section 2 of the AIRFA directs federal agencies to consult with American Indian spiritual leaders to determine appropriate procedures to protect the inherent rights of American Indians, as laid out it the act.

Original text

Public Law 95-341
95th Congress
Joint Resolution
American Indian Religious Freedom.
Whereas the freedom of religion for all people is an inherent right, fundamental to the democratic structure of the United States and is guaranteed by the First Amendment of the United States Constitution;
Whereas the United States has traditionally rejected the concept of a government denying individuals the right to practice their religion, and as a result, has benefited from a rich variety of religious heritages in this country;
Whereas the religious practices of the American Indian (as well as Native Alaskan and Hawaiian) are an integral part of their culture, tradition, and heritage, such practices forming the basis of Indian identity and value systems;
Whereas the traditional American Indian religions as an integral part of Indian life, are indispensable and irreplaceable;
Whereas the lack of a clear, comprehensive, and consistent Federal policy has often resulted in the abridgment of religious freedom for traditional American Indians;
Whereas such religious infringements result from the lack of knowledge of the insensitive and inflexible enforcement of Federal policies and regulations premised on a variety of laws;
Whereas such laws were designed for such worthwhile purposes as conservation and preservation of natural species and resources but were never intended to relate to Indian religious practices and, there, were passed without consideration of their effect on traditional American Indian religions;
Whereas such laws and policies often deny American Indians access to sacred sites required in their religions, including cemeteries;
Whereas such laws at times prohibit the use and possession of sacred objects necessary to the exercise of religious rites and ceremonies;
Whereas traditional American Indian ceremonies have been intruded upon, interfered with, and in a few instances banned;
Now, therefore, be it Resolved by the Senate and the House of Representatives of the United States of America in Congress Assembled, That henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
SEC. 2. The President shall direct that various Federal departments, agencies, and other instrumentalities responsible for the administering relevant laws to evaluate their policies and procedures in consultation with Native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices. Twelve months after approval of this resolution, the President shall report back to Congress the results of his evaluation, including any changes which were made in administrative policies and procedures, and any recommendations he may have for legislative action.
Approved August 11, 1978.

Effects

The traditional homeland of the Yurok, Karok, Tolowa, and Hupa tribes exists in an area that includes the Six Rivers National Forest and the Klamath National Forest.

 

Native American tribes had traditionally been closely associated with their lands, and their religious practices and beliefs were based in specific geographic areas. Lyng v. Northwest Indian Cemetery Protective Association (1988) is a landmark case in the Supreme Court's decisions affecting Native American religion under the AIRFA. The bureaucratic decisions to alter land sites implemented by the Court on this case, constitute invasions of tribal self-understanding. This case helped to prove that the dissipation of tribal identity is the consequence of land desecration. The fact that land desecration is allowed to happen so easily is a result of the absence of enforcement and stability within the terms of the American Indian Religious Freedom Act. 

The Forest Service wanted to build a road that went directly through the sacred lands of the Yurok, Tolowa, and Karok tribes. Under Lyng v. Northwest Indian Cemetery Protective Association, in 1988 the tribe filed suit against the government for denying their rights to religious freedom under the first amendment by ruling in favor of the United States Forest Service. Tribal leaders testified that the road would destroy parts of the pristine mountains and high country that the tribes considered sacred and essential to their religious beliefs and practices. They expressed their concerns in court, outlining the burden imposed upon their religious freedom. However, the court determined that, because the tribes had not stated a requisite legal burden on those rights, that they could not receive protection under the AIRFA.

The Theodoratus Report was a comprehensive study prompted by the American Indian Religious Freedom Act during Lyng v. Northwest Indian Cemetery Protective Ass'n (1988) and conducted by the United States Forest Service in order to evaluate policies and procedures to protect Native American religious cultural rights and practices. This study was done in order to provide definitive information on the effects of the Forest Service's actions on Native American religious culture in high country. This study was completed in April 1979 and was titled Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest and was written by Dr. Dorothea J. Theodoratus, Dr. Joseph L. Chartkoff, and Ms. Kerry K. Chartkoff. It was a compilation of ethnographic, archaeological and historical data that identified the culture contained in the area that the Forest Service proposed to be the site of the Chimney Rock Section of the Gasquet-Orleans Road. This culture belonged to the Yurok, Karok, and Tolowa peoples. 

In its final recommendations, the report criticizes the Forest Service for ignorance of the physical and historical significance and religious importance of the site proposed for road construction. The report warned the Forest Service against the ruinous impact of road construction, and its logging and mining operations. It said the philosophy that high country is solely a natural resource to be managed and improved was at fault. The report traced the long history of this site as sacred to succeeding cultures of indigenous peoples, whose connection could be documented from prehistory. The report stated that the only appropriate management of such land should be its preservation in a natural state.

The Theodoratus Report, in effect, established a guideline by which the Forest Service would be able to understand the importance of land to Native American culture. Because they had commissioned the report and recognized its significance they conformed with the AIRFA in the Lyng case, but it was the Theodoratus Report, not the AIRFA, that compelled the Forest Service to follow the report's collection of data on the religious significance of the high country. However, nothing within the AIRFA prevented the Forest Service from ignoring the warning of its own commissioned report concerning the destruction of the Yurok, Karok, and Tolowa religious traditions.

This case's decision states that tribes have no First Amendment right of religious freedom that can halt federal land management of public lands that contain sacred tribal spaces. This decision became the standing precedent that threatened the survival of any traditional Native American community whose sacred lands, by the fault of the government's history of Indian affairs, are on public land rather than on reservations. The Supreme Court advocated its decision to refuse the countenance of the religious valuation of land as representing its responsibility towards enforcing the First Amendment rights of the Native American plaintiff.

A Peyote Ceremony Tipi used by members of the Native American Church

 

Peyote is illegal in the United States and is classified as a Schedule One Drug.

 

In Employment Division v. Smith (1990), the Court ruled against the Native American Church its constitutional rights. Alfred Smith, a Native American who had been born on the Klamath Reservation in Oregon, was fired from his job at an agency in Roseburg, Oregon that helped develop services for Native American clientele. His termination was based on his attendance at ceremonies of the Native American Church, which uses peyote as a sacrament. Because it is a restricted substance under drug laws, Smith was fired for his use of it. Another member of the N.A.C. was also fired from the agency for the same reason. When denied unemployment compensation, Smith and his co-worker challenged the grounds of their terminations. Smith took his case to the Oregon courts, which ruled in his favor of protected use of peyote under the free-exercise clause of AIRFA. 

The U.S. Supreme Court reviewed the case, and overturned the Oregon court ruling. The Supreme Court stated that they could in fact be denied unemployment benefits because by using peyote they were in violation of state criminal law. The Smith decision prompted the development of the Native American Religious Freedom Project which involved and concerned almost every Native American tribe in the country. In 1993 the Religious Freedom Restoration Act was passed, and by 1994 the American Indian Religious Freedom Act Amendments were passed as Public Law 103-344. The Amendments provided legislative protection for religious practices of the Native American Church.

Criticism

The major criticism of the American Indian Religious Freedom Act was its inability to enforce its provisions, therefore its inability to provide religious freedom without condition. The act served as more of a joint resolution than an actual law. Its failure to protect certain sacred sites proved detrimental to Native American cultures and religions as a whole.

The Lyng v. Northwest Indian Cemetery Association decision represented a unique convergence of religion, law, and land, and confirmed the American Indian Religious Freedom Act as a hollow excess of words. The Supreme Court itself declared that the legislation had no firm grasp on what it stood for. There was nothing in the Act that mandated changes pursuant to the review process prior to its amendment in 1994. The case illustrates that compliance with the review procedure of the AIRFA does not provide any assurance that judicial protections or substantive agency will be offered to Native American religious belief and practice, even if the serious endangerment to Native American religion from proposed government action is recognized within that review procedure.

1994 Amendments – full text

Due to the criticism of the AIRFA and its inability to enforce the provisions it outlined in 1978, on June 10, 1994 the House of Representatives Committee on Natural resources, and later the Subcommittee on Native American Affairs, met to bring about H.R. 4155 in order to provide for the management of federal lands in a way that doesn't frustrate the traditional religions and religious purposes of Native Americans. The full text is available on the Library of Congress website. However, it never became law.

In 1994, Congress passed H.R. 4230 to amend the American Indian Religious Freedom Act, in order to provide for protected use of peyote as a sacrament in traditional religious ceremonies. This was passed as Public Law No 103-344 on October 6, 1994, with full text as below.

H.R. 4230.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "American Indian Religious Freedom Act Amendments of 1994".

SECTION 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT.

The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as the "American Indian Religious Freedom Act", is amended by adding at the end thereof the following new section:

SECTION 3.

(a) The Congress finds and declares that –

(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures;

(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation;

(3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, many States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies;

(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling of the State interest standard and

(5) the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment in violation of the religious guarantees of the First Amendment of the Constitution.

(b)(1) Notwithstanding any other provision of the law, the use, possession, or transportation of peyote by an Indian who uses peyote in a traditional manner for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.

(2) This section does not prohibit such reasonable regulation and registration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this Act.

(3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon's Texas Health and Safety Code Annotated, in effect on the date of enactment of this section, insofar as those provisions pertain to the cultivation, harvest, and distribution of peyote.

(4) Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing reasonable limitations on the use or ingestion of peyote prior to or during the performance of duties by sworn law enforcement officers or personnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. Any regulation promulgated pursuant to this section shall be subject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-1).

(5) This section shall not be construed as requiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while incarcerated within Federal or State prison facilities.

(6) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-1), this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations.

(7) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 USC 2000bb-1), this section does not prohibit the Secretary of Defense from promulgating regulations establishing reasonable limitations on the use, possession, transportation, or distribution of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice.

(c) For purposes of this section –

(1) the term 'Indian' means a member of an Indian tribe;

(2) the term 'Indian tribe' means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.S. 1601 et seq.)), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;

(3) the term 'Indian religion' means any religion –

(A) which is practiced by Indians, and

(B) the origin and interpretation of which is from within a traditional Indian culture or community; and

(4) the term 'State' means any State of the United States, and any political subdivision thereof.

(d) Nothing in this section shall be construed as abrogating, diminishing, or otherwise affecting –

(A) the inherent rights of any Indian tribe;

(B) the rights, express or implicit, of any Indian tribe which exist under treaties, executive orders, and laws of the United States;

(C) the inherent right of the Indians to practice their religions under any Federal or State law.

State Religious Freedom Restoration Acts

From Wikipedia, the free encyclopedia

  20 States had existing RFRA Laws prior to their 2015 legislative session

  Sixteen states had RFRA legislation proposed during the 2015 legislative season. Only two, Indiana and Arkansas passed.

Some states have RFRA laws and LGBT anti-discrimination ordinances.

 

State Religious Freedom Restoration Acts are state laws based on the Religious Freedom Restoration Act (RFRA), a federal law that was passed almost unanimously by the U.S. Congress in 1993 and signed into law by President Bill Clinton. The laws mandate that religious liberty of individuals can only be limited by the "least restrictive means of furthering a compelling government interest". Originally, the federal law was intended to apply to federal, state, and local governments. In 1997, the U.S. Supreme Court in City of Boerne v. Flores held that the Religious Freedom Restoration Act only applies to the federal government but not states and other local municipalities within them. As a result, 21 states have passed their own RFRAs that apply to their individual state and local governments.

Pre Hobby Lobby

The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA), is a 1993 United States federal law that "ensures that interests in religious freedom are protected." The bill was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy (D-MA) the same day. A unanimous U.S. House and a nearly unanimous U.S. Senate—three senators voted against passage—passed the bill, and President Bill Clinton signed it into law. 

The federal RFRA was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress's enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores and other related RFRA issues, twenty-one individual states have passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.

State RFRA laws require the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the federal Religious Freedom Restoration Act, which usually serves as a model for state RFRAs, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore the Act states that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."

The federal RFRA provided an exception if two conditions are both met. First, the burden must be necessary for the "furtherance of a compelling government interest". Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.

Post Hobby Lobby

In 2014, the United States Supreme Court handed down a landmark decision in Burwell v. Hobby Lobby Stores, Inc. recognizing a for-profit corporation's claim of religious belief. Nineteen members of Congress who signed the original RFRA stated in a submission to the Supreme Court that they "could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA". The United States Government stated a similar position in a brief for the case submitted before the U.S. Supreme Court handed down its decision in Burwell v. Hobby Lobby, writing that "Congress could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA. ... The test Congress reinstated through RFRA ... extended free-exercise rights only to individuals and to religious, non-profit organizations. No Supreme Court precedent had extended free-exercise rights to secular, for-profit corporations."

Following the Burwell v. Hobby Lobby decision, many states have proposed expanding state RFRA laws to include for-profit corporations, including in Arizona where SB 1062 passed by in Arizona but vetoed by Jan Brewer in 2014. Indiana SB 101 defines a "person" as "a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association" or another entity driven by religious belief that can sue and be sued, "regardless of whether the entity is organized and operated for profit or nonprofit purposes". Indiana Democrats proposed an amendment that would not permit businesses to discriminate and the amendment was voted down.

An RFRA bill in Georgia has stalled, with constituents expressing concern to Georgia lawmakers about the financial impacts of such a bill. Stacey Evans proposed an amendment to change references of "persons" to "individuals", which would have eliminated closely held for-profit corporations from the proposed law, but the amendment was rejected because it would not give protections to closely held corporations to practice religious freedoms granted by the Supreme Court in the Hobby Lobby case.

Some commentators believe that the existence of a state-level RFRA bill in Washington could have affected the outcome of the Arlene's Flowers lawsuit, where a florist was prosecuted and convicted for refusal to provide flowers for a gay wedding.

Politifact reports that "Conservatives in Indiana and elsewhere see the Religious Freedom Restoration Act as a vehicle for fighting back against the legalization of same-sex marriage." Despite being of intense interest to religious groups, state RFRAs have never been successfully used to defend discrimination against gays—and have rarely been used at all. The New York Times noted in March 2015 that state RFRAs became so controversial is due to their timing, context and substance following the Hobby Lobby decision.

Several law professors from Indiana stated that State Religious Freedom Restoration Acts like "Indiana SB 101" are in conflict with the U.S. Supreme Court's Free Exercise Clause jurisprudence under that "neither the government nor the law may accommodate religious belief by lifting burdens on religious actors if doing so shifts those burdens to third parties. [...] The Supreme Court has consistently held that the government may not accommodate religious belief by lifting burdens on religious actors if that means shifting meaningful burdens to third parties. This principle protects against the possibility that the government could impose the beliefs of some citizens on other citizens, thereby taking sides in religious disputes among private parties. Avoiding that kind of official bias on questions as charged as religious ones is a core norm of the First Amendment." The Supreme Court for example stated in Estate of Thornton v. Caldor, Inc. (1985): "The First Amendment ... gives no one the right to insist that, in pursuit of their own interests others must conform their conduct to his own religious necessities.'" Relying on that statement they point that the U.S. Constitution allows special exemptions for religious actors, but only when they don't work to impose costs on others. Insisting on "the constitutional importance of avoiding burdenshifting to third parties when considering accommodations for religion" they point out the case of United States v. Lee (1982). Here the court stated:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.

Effects of RFRAs on state court cases

Mandates courts use the following when considering religious liberty cases:

1. Strict scrutiny
2. Religious liberty can only be limited for a compelling government interest
3. If religious liberty is to be limited, it must be done in the least restrictive manner possible

States with RFRAs

By legislature

Legislatures of 21 states have enacted versions of the Religious Freedom Restoration Act:

• Alabama (state constitution amendment)
• Arizona
• Arkansas
• Connecticut
• Florida
• Idaho
• Illinois
• Indiana
• Kansas
• Kentucky
• Louisiana
• Mississippi
• Missouri
• New Mexico
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• Tennessee
• Texas
• Virginia

By state court decision

An additional 10 states have RFRA-like provisions that were provided by state court decisions rather than via legislation:

• Alaska
• Hawaii
• Ohio
• Maine
• Massachusetts
• Michigan
• Minnesota
• Montana
• Washington
• Wisconsin

Reversals

Some states have had legislation withdrawn or vetoed. Arizona's bill SB 1062 was vetoed by Governor Jan Brewer. Bills 1161 and 1171 have been vetoed by a Colorado committee.

Additional details on specific state laws

Arkansas

In April 2015, the governor of Arkansas, Asa Hutchinson, signed a religious freedom bill into law. The version of the bill he signed was more narrow in scope than the original version, which would have required state and local governments to demonstrate a compelling governmental interest to be able to infringe on someone's religious beliefs.

Georgia

In March 2016, the Georgia State Senate and the Georgia House of Representatives passed a religious freedom bill. On March 28, Georgia's governor, Nathan Deal, vetoed the bill after multiple Hollywood figures, as well as the Walt Disney Company threatened to pull future productions from the state if the bill became law. Many other companies had also been opposed to the bill, including the National Football League, Salesforce, the Coca-Cola Company, and Unilever.

Indiana

In March 2015, Mike Pence, the governor of Indiana, signed the Religious Freedom Restoration Act into law, which allowed business owners who objected to same-sex couples on religious grounds to opt out of providing them services.

Mississippi

In April 2016, Phil Bryant, the governor of Mississippi, signed into law a bill that protects people from government punishment if they refuse to serve others on the basis of their own religious objection to same-sex marriage, transgender people, or extramarital sex. The sponsors of "Project Blitz," a coalition of conservative Christian organizations supporting dozens of "religious liberty" bills at the state level across the United States, see Mississippi's law as model legislation.

Missouri

On March 9, 2016, the Missouri State Senate passed a religious freedom bill. Senate Democrats tried to stop the bill with a 39-hour filibuster, but Republicans responded by forcing a vote using a rarely used procedural maneuver, which resulted in the bill passing. In April, it was defeated 6-6 in a Missouri House of Representatives committee vote, with three Republicans joining three Democrats in voting against the bill.

South Dakota

On March 10, 2017, Dennis Daugaard, the governor of South Dakota, signed into law SB 149, which allows taxpayer-funded adoption agencies to deny services under circumstances that conflict with religious beliefs.

Religious freedom bill

From Wikipedia, the free encyclopedia

In the United States, a religious freedom bill is a bill that, according to its proponents, allows those with religious objections to certain activities to act in accordance with their beliefs without being punished by the government for doing so. This typically concerns an employee who objects to abortion, euthanasia, same-sex marriage, or transgender identity and wishes to avoid situations where they will be expected to put those objections aside. Proponents commonly refer to such proposals as religious liberty or conscience protection. 

 

Opponents of such bills frame them instead as "religious refusal bills", "bigot bills", or as a "license to discriminate"; pointing out that the legislation allows individuals and businesses to openly espouse prejudice, especially against LGBT individuals.

History

In the 1960s, as a response to the desegregation of public schools, white Americans created many private schools (known as "segregation academies" or "freedom of choice schools") in the South. These schools gradually became associated with evangelical Christianity. Those who supported the schools, according to historian Joseph Crespino, said they were defending the rights of religious minorities. As Corey Robin put it, "the heirs of slaveholders," in their imaginations, "became the descendants of persecuted Baptists, and Jim Crow a heresy the First Amendment was meant to protect."

Controversy

Legal philosophy

The trade-off at the heart of the controversy is whether antidiscrimination laws must always be obeyed or whether other rights can be considered more important, in effect granting the right to discriminate. Some understand respect for individual human rights as foundational to democracy and the rule of law, but, at the same time, the First Amendment to the Constitution treats freedom of religion as foundational and prevents the government from making any law "prohibiting the free exercise" of religion. The latter stance was taken in a U.S. presidential executive order issued in May 2017 in which President Trump held that "the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom." In July 2018, Attorney General Jeff Sessions announced the creation of a "religious liberty task force" under the Department of Justice to implement the executive order's "guidance in the cases they [the Department of Justice] bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.”

Richard Thompson Ford said that "overly broad conceptions of civil rights protections have turned these important laws against themselves," and that, while each protection may seem coherent on its own, "in combination they constitute a recipe for unresolvable conflicts of absolutes." A less abstract and more pragmatic approach, he argued, might be to accord greater protection to minority religions and to serious injuries. The famous case of Masterpiece Cakeshop fits neither criterion, then, according to Ford, as the baker belonged to the majority Christian religion and the customers weren't significantly injured by having their wedding cake request denied.

Moral epistemology

Other problems include how to demonstrate whether a belief is sincere, whether it is factually informed and accurately corresponds to the situation at hand, and whether it is indeed "religious" or "moral" in its origin. Indiana University law professor Steve Sanders said that "often there is no way to differentiate between genuine religious convictions and beliefs that are made up out of convenience....an employee who merely has a phobia toward transgender people might still claim a 'religious' exemption, and the employer would have little choice but to grant it."

Rhetoric

One type of rhetorical frame depicts the religious freedom controversy as a war of identities. The key is selecting identities to illustrate the problem in a way that the illustration speaks for itself. For example, one Catholic nun identified the question of "favoring the civil liberty rights of transgender individuals over the conscience rights of public service providers"; she sided with the public service providers. For a contrasting example, Rev. M Barclay, an openly transgender deacon in the United Methodist Church, described the same question as "Christians using power and privilege to target marginalized demographics like the LGBTQ community". These different angles are discussing the same question.

Legal challenges

After the January 2018 creation of the Conscience and Religious Freedom Division of the U.S. Dept. of Health and Human Services, Reuters reported that "legal and medical ethics experts said that such exemptions [to antidiscrimination law] have legal limits and would be challenged in court."

In April 2018, a supporter of President Trump was asked to leave a bar in New York City for wearing a "Make American Great Again" hat. The customer's lawyer claimed in court that "The Make American Great Again hat was part of his spiritual belief" (as it is illegal to discriminate against people for their religious beliefs), while the bar's lawyer claimed that "supporting Trump is not a religion." The judge dismissed the case.

Support

From government

In May 2018, President Trump signed an executive order creating the White House Faith and Opportunity Initiative, an expansion of existing initiatives created by Bush and Obama. Agencies and offices in the executive branch will have a liaison to the newly expanded initiative if they do not already have a faith-based program of their own. 

According to the executive order, the Faith and Opportunity Initiative will "notify the Attorney General, or his designee, of concerns raised by faith-based and community organizations about any failures of the executive branch to comply with protections of Federal law for religious liberty" and seek to "reduce...burdens on the exercise of religious convictions and legislative, regulatory, and other barriers to the full and active engagement of faith-based and community organizations in Government-funded or Government-conducted activities and programs."

From activists

A coalition of conservative Christian organizations called Project Blitz supports, as of May 2018, over 70 bills across the United States, many of which are religious liberty bills. One of the Project Blitz leaders said in a conference call that the goal of having so many similar bills was to force opponents to "divide their resources out in opposing this." In 2017, the Congressional Prayer Caucus Foundation produced a 116-page "playbook" with model legislation; the name "Project Blitz" is not used in this report.

Situations in which discrimination may occur

Healthcare

Many healthcare types are potentially covered by conscience-protection laws. In the U.S., as of 2013, these laws "are increasingly being written in such a way that they would capture mental health professionals".

On Jan. 18, 2018, the Dept. of Health and Human Services (HHS) announced the creation of a new division within its existing Office for Civil Rights (OCR). The new division is called the Conscience and Religious Freedom Division. It was created to enforce federal laws related to "conscience and religious freedom." That same day, Indiana University law professor Steve Sanders criticized the new approach as having "the potential to impede access to care, insult the dignity of patients, and allow religious beliefs to override mainstream medical science."

Positions of medical organizations

Many professional organizations for physicians and other healthcare providers have ethics codes that forbid members from refusing care to patients. 

The ethics code of the American Medical Association allows physicians to "refuse to participate in torture, interrogation or forced treatment" but not to deny care based on a patient's "race, gender, sexual orientation, gender identity, or any other criteria that would constitute invidious discrimination."

The American Psychological Association believes that students need to learn their future "ethical obligations regarding non-discrimination" and requires broad-based diversity training "because they may grow and change in their beliefs, preferences in populations with whom they would like to work, geographic region, etc." While in some cases it may be appropriate for a mental health provider to refer a patient to another provider, this is not always practical, especially in "schools and rural communities." The organization opposes conscience-clause legislation, seeing it as an "intrusion of state legislatures into the education and training of mental health professionals".

The American Academy of Pediatrics supported repeal of Tennessee's faith-healing law allowing parents to seek "treatment by spiritual means through prayer alone" for their children. In 2008, the organization opposed conscience-clause legislation proposed at the federal level. It released a statement that physicians practicing reproductive medicine, as with any other kind of medicine, have "the obligation to talk with patients about all of their options and, for services which cannot or will not be provided, refer them to someone who can help them without delay".

Scott Johnson, former president of the American Association for Marriage and Family Therapy, said that conscience-based exemptions from discrimination look "simply like prejudice" and that "the problem with conscience is that it can let us do evil as well as good." If a therapist violates AAMFT's Code of Ethics, the organization can remove that person's membership in the professional organization even if state law permits the therapist's behavior. The 2012 version of the Code of Ethics "does not speak directly to matters of therapist values or conscience."

Religious colleges

In 2006, California passed the Nondiscrimination in State Programs and Activities Act (SB 1441) to withdraw state funding from private universities that enforce a "moral code" regarding students' sexual orientation or gender identity. Karen England, executive director of the Capitol Resource Institute, described this as "an outright, blatant assault on religious freedom.”

Between 2013 and 2015, the federal government granted over 30 exemptions to religious colleges who did not wish to comply with federal antidiscrimination law applying to gender identity and sexual orientation, according to a report by the Human Rights Coalition.

Basis for discrimination

Contraception and abortion

Following Roe v. Wade, the landmark abortion rights Supreme Court decision in 1973, "laws were passed to ensure that hospitals or clinics that received federal funds would be unable to force medical personnel who objected to abortion or sterilization on the grounds of their 'religious beliefs or moral convictions' to perform those procedures." At the end of President George W. Bush's administration, "a new 'conscience clause' took effect, cutting off federal funding for institutions that failed to accommodate employees' religious or moral objections."

To those who believe abortion is murder, it may seem "a particularly deadly form of authoritarianism" to "demand that physicians kill their patients or help to arrange for the killing, even if they believe doing so is wrong." By 2005, in at least a dozen U.S. states, pharmacists had cited their personal morality in their refusal to fill prescriptions for birth control, including "emergency contraception" to prevent a fertilized egg from implanting in the uterus.

Under the Affordable Care Act, private health insurance plans must cover women's contraception without charging any "out-of-pocket cost" to the woman. The Trump administration moved to provide exemptions to employers who claim moral or religious objections to providing contraceptive coverage to their employees. In January 2019, a federal judge blocked these rules from taking effect in 13 states and the District of Columbia.

Euthanasia (assisted suicide)

Physicians can cause a patient's death "actively" (for example, by administering a fatal drug) or "passively" (by withholding food, water, or medical care that would prolong life). This option may be offered to patients who are terminally ill and are severely disabled or in great pain with no hope of recovery. If the patient is unable to communicate or consent, sometimes family members may be asked to decide. This option is called "euthanasia," "assisted suicide," or "mercy killing."

Physicians often consider themselves to be bound to the Hippocratic Oath, the original text of which was written between the fifth and third centuries BCE and requires the physician to promise that he or she will not "administer a poison to anybody when asked to do so, nor will I suggest such a course."

In the late twentieth century it became a subject of public debate in the United States in large part due to the work of Jack Kevorkian, who claimed to have assisted 130 patient suicides. Surveys have shown that up to half of U.S. physicians have at some point received patient inquiries about assisted suicide.

The Catholic Church has long opposed euthanasia. In 1980, the Vatican issued a Declaration on Euthanasia that explains: "The pleas of gravely ill people who sometimes ask for death are not to be understood as implying a true desire for euthanasia; in fact, it is almost always a case of an anguished plea for help and love."

Same-sex marriage

Some clerks at city halls have refused to issue marriage licenses to same-sex couples. The most famous one is Kim Davis, county clerk for Rowan County, Kentucky, who claimed to be acting "under God's authority" when she protested the nationwide legalization of same-sex marriage in 2015 by refusing to issue marriage licenses to couples of any gender. She served five days in jail for contempt of court. Similarly, in 2015, a Tennessee judge protested the legalization of same-sex marriage by his refusal to issue a divorce to an opposite-sex couple. He argued that the Supreme Court's ruling revealed that it believed the state of Tennessee "to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces" and said that he would wait for further instruction from the Supreme Court.

Children of same-sex parents

In 2014, two women, Krista and Jami Contreras, met with a pediatrician in Detroit shortly before the birth of their child. When the child was six days old, they arrived for their appointment and were told that the doctor had "prayed on it" and decided she could not provide care for the child. A different doctor had been assigned to the family. The original doctor later wrote to the couple: "After much prayer following your prenatal, I felt that I would not be able to develop the personal patient-doctor relationships that I normally do with my patients."

As of April 2018, five states (South Dakota, Michigan, Alabama, Texas, Oklahoma) allow foster care agencies to refuse to place children with same-sex guardians if the agency has "sincerely held religious beliefs" against same-sex parenting.

Gender transition procedures

Gender transition is an individualized process. Transgender people may seek medical changes to their sexual characteristics according to their physical and mental needs and preferences. A person may take hormones (often administered by injection), which they will generally then administer on a regular basis for the rest of their life. They may also have various kinds of surgery including breast augmentation or removal, genital reshaping, and removal of reproductive organs. Transgender women may have facial feminization surgery, an "Adam's apple reduction" to remove cartilage from the throat (tracheal shave), and electrolysis to remove unwanted facial and body hair.

Legal and institutional procedures may also be involved. The transgender person may want to change their name and gender marker on their identity documents, healthcare policy, and school or employment registration. This may impact their marriage or divorce proceedings.

They may seek psychotherapy, either because they choose to do so for their own reasons or because it is part of an established process for gender transition. Some physicians will require a referral letter from a psychotherapist. Transgender people "have routinely been asked to obtain an endorsement letter from a psychologist attesting to the stability of their gender identity as a prerequisite to access an endocrinologist, surgeon, or legal institution (e.g., driver's license bureau)".

A healthcare provider or administrative assistant who objects to gender reassignment on principle might wish to decline to participate in any or all of these procedures. One pitfall of such a conscience-based refusal is that it is not always clear-cut when a procedure's primary purpose is gender reassignment. After a person has taken initial major steps to reassign their gender, ongoing procedures (like hormones, electrolysis, or minor surgical corrections) may simply be considered as "maintenance." In case of cancer prevention or treatment, reproductive organs may need to be chemically disabled or removed, and if the patient is coincidentally happy about the removal for their own personal reasons, that does not necessarily mean the procedure is best thought of as a component of gender transition. Cosmetic procedures may be considered part of the universal human desire to look attractive and may not obviously be gender-related. In psychotherapy, a person who happens to be transgender may need to mention problems or circumstances that are related to their gender identity or transition, events that may be years in the past or future; this does not necessarily mean that the psychotherapist is endorsing or helping them complete their gender transition.

On the last day of the 2016 calendar year, just before the Obama administration's new anti-discrimination policy under the Affordable Care Act regarding gender identity and gender stereotypes was to take effect, federal judge Reed O'Connor blocked it. O'Connor believed the anti-discrimination rule conflicted with the Religious Freedom Restoration Act. In April 2018, the Trump administration said it would roll back the anti-discrimination rule.

Transgender identity

Discriminating against someone for their transgender identity is different than refusing to participate in a specific action they are taking as part of their gender transition. When the person is discriminated against for their identity, the implication is that they are refused a product or service that would normally be considered entirely unrelated to the gender transition they have undergone or want to undergo.

Transgender people already have difficulty accessing healthcare. Healthcare providers often have difficulty recognizing and separating other dimensions of a transgender person's health apart from their gender transition. The 2015 U.S. Transgender Survey found that, just within the past year, 15 percent of respondents said healthcare providers had asked them "unnecessary or invasive questions about their transgender status that were not related to the reason for their visit," while 3 percent were refused "care not related to gender transition (such as physicals or care for the flu or diabetes)."

Roger Severino, director of HHS Office of Civil Rights, in 2018 on the day that the creation of the Conscience and Religious Freedom division was announced, was asked by a journalist whether "someone who is transgender would be denied health care" under the laws in question. He responded: "I think denial is a very strong word...[healthcare] providers...simply want to serve the people they serve according to their religious beliefs". Two days later, a Boston Globe editorial warned that the new HHS Conscience and Religious Freedom division will "allow medical professionals and institutions who claim religious objections to deny coverage to transgender people" which "appears to open the way for a doctor or nurse to turn away a transgender individual with a broken arm — for no other reason than by their gender identity."

Marital status

In the 1990s, there were legal disputes regarding landlords who did not want to rent to unmarried couples.

Race

Some people claim that racial segregation is part of their religious beliefs. For example, in 2019, one of Hoschton, Georgia's city councilmen, Jim Cleveland, told a newspaper that "my Christian beliefs are you don’t do interracial marriage. That’s the way I was brought up and that’s the way I believe." He additionally told the Atlanta Journal-Constitution that seeing interracial black/white couples "makes my blood boil because that’s just not the way a Christian is supposed to live." Bob Jones University, a fundamentalist Christian school in South Carolina, prohibited interracial dating from the 1950s until 2000.

In 2015, law professor David Bernstein argued that, if ideological consistency is a guide, discrimination against same-sex marriages would lead to discrimination against "interracial or interreligious marriages."

In 2018, South Dakota state Rep. Michael Clark (R) commented on the Masterpiece Cakeshop decision, saying that a hypothetical baker should be allowed to turn away not only gay people but also people of color. "He should have the opportunity to run his business the way he wants," Clark wrote on Facebook. "If he wants to turn away people of color, then [that's] his choice." He later deleted the comment and apologized, saying, "I would never advocate discriminating against people based on their color or race."

Side effects of discrimination

Apart from the direct injury of any specific instance of discrimination, there may be indirect effects of discriminatory law. Gay, lesbian, and bisexual adults reported an increase in mental distress between 2014 and 2016 if they lived in U.S. states that permitted denial of services to same-sex couples in 2015, whereas straight adults and people living in other states did not report the same increase in mental distress. Similarly, an analysis by scientists at the University of Pittsburgh published in the American Journal of Orthopsychiatry found that, after Indiana passed a religious freedom law in 2015, people in Indiana who identify as lesbian, gay, bisexual, or who question their sexual orientation self-reported worse physical and mental health.

Federal law

The Religious Freedom Restoration Act is limited. It cannot be used as a basis for discriminating against employees who identify as lesbian, gay, bisexual, or transgender, according to a federal appeals court in March 2018.

Massachusetts Rep. Joseph Kennedy III is sponsoring a proposed amendment to the Religious Freedom Restoration Act that would prevent people from claiming religious exemptions to nondiscrimination laws. The amendment is called the Do No Harm Act (H.R. 3222).

In January 2018, the Department of Justice added a section called "Respect for Religious Liberty" to the United States Attorneys' Manual.