(AP/Matt York)

(AP/Matt York)

The debate over last summer’s Hobby Lobby decision has a new source for conflict: state legislatures. The Supreme Court decision, which expanded corporate religious liberty, rested on an interpretation of the Religious Freedom Restoration Act (RFRA), a federal statute that Congress passed in 1993. In the post-Hobby Lobby era, it has become common to hear of states gearing up to buttress their own versions of RFRA. At least 20 states have enacted RFRAs, and in the past several months, state lawmakers in several jurisdictions have proposed RFRA amendments to protect business owners against claims of discrimination.

In Georgia, where a same-sex marriage ban is currently being challenged in federal court, the state legislature proposed the “Preventing Government Overreach on Religious Expression Act” in late January. The bill would amend the state’s RFRA to shield businesses and employers who engage in discriminatory practices, if their motives are religious. Arizona Governor Jan Brewer vetoed similar legislation after both business and civil rights leaders objected. Kansas, Michigan, Idaho, Indiana, Mississippi, Missouri, and Oklahoma, among others, have also considered such bills.

The legislation is being pushed by religious conservatives. They have been alarmed by lawsuits that have been brought in several states against small business owners—photographers, florists, and bakers—who refused services to customers involved in same-sex weddings. They contend they have a right to be exempt from anti-discrimination laws that prohibit denying service on the basis of sexual orientation. Against this claim, courts have consistently held that business owners do not have the right to refuse to serve gay and lesbian couples. But these decisions have been reached in states like New Jersey and Washington, which do not have RFRAs. In Idaho, which does have a state RFRA, a similar case had a very different outcome in late 2014; officials from the city of Coeur d’Alene concluded that a wedding chapel run by two ministers would be exempt from a city anti-discrimination law as a religious organization.

When the Supreme Court agreed in January to decide whether the Fourteenth Amendment requires all states to license and recognize same-sex marriages, the fight over religious exemptions from civil rights laws intensified. States that have proposed shoring up their RFRAs are doing so in anticipation of the Supreme Court ruling in favor of same-sex marriage. The politics surrounding these questions are acrimonious and there is genuine pain on both sides. According to proponents of bills like one being considered in Georgia, the “right” to discriminate is the only refuge for otherwise imperiled religious commitments. On the other side, critics deplore the subordination of equality to religious freedom. Noting that anti-discrimination laws protect against invidious distinctions by race, national origin, and sex, as well as religion, they argue that enacting the broadly phrased RFRA laws that religious conservatives are promoting would shield many kinds of bad behavior—not just refusals to serve same-sex couples.

For both sides, there are monsters lurking in the rapidly changing law of religion and marriage.

We have seen a similar conflict before. In an eerie foreshadowing of today’s marriage debates, the law of marriage was also at the center of debates about the Fourteenth Amendment that took place a generation ago in the 1960s through the 1980s, when the issue was racial equality, not sexual equality. In the end, in the face of protracted resistance, a head-on collision between religion and race produced a strong win for anti-discrimination, with racial equality deemed to be more central to American constitutional life than sincerely held, racially discriminatory religious beliefs. After the Supreme Court held in 1967 that anti-miscegenation laws (which prohibited interracial marriage) violated the equal protection clause of the Fourteenth Amendment, some religious organizations fought back by seeking religious accommodations for segregation. A case in point is Bob Jones University, which had traditionally refused to admit students of African descent. After 1971, it accepted black students but only if they were already married. In 1975, in response to pressure from the federal government, the university accepted unmarried black applicants, but prohibited interracial dating.

The issue of religious accommodations came to a head in the early 1980s. Acting on a 1970 regulation that prohibits granting tax-exempt status to any educational institution that maintains racially discriminatory policies, the IRS had long maintained that Bob Jones should be ineligible. The university fought back, citing the First Amendment’s protection of the free exercise of religion. Finally, in 1983 the Supreme Court took up the question. In an 8-1 opinion written by Chief Justice Warren Burger, the Court held that the government as “a fundamental, overriding interest in eradicating racial discrimination in education … which substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of their religious beliefs.”

This decision, which involved statutory as well as constitutional law, was attacked by religious conservatives, some of whom claimed that the Bob Jones case would rank next to Supreme Court cases on school prayer and Bible reading, which they had long condemned as the imposition of “secular humanism” on the people of America. In fact, the outrage eventually subsided. In 2000, Bob Jones University announced that it would permit interracial dating on campus, and now formally apologizes for the “segregationist ethos” that underlay its earlier policy. By mid-2013, a record 87 percent of Americans approved of marriages between those of African and European descent.

The new proposed amendments to state RFRAs seek to undo the result in Bob Jones, by exempting those who discriminate on religious grounds from the operation of statutes protecting civil rights. Supported by conservative religious groups such as the Beckett Fund and the Alliance Defending Freedom, such laws have become the go-to solution for states that seek to resist what they predict will be the law of marriage nationwide, after the Supreme Court decides the question by the end of its current term, in June 2015. We know that the right to marry is considered a fundamental right, and that considerations of equality are paramount constitutional concerns. The question raised by the current proposals to amend RFRAs at the state level is whether statutory laws exempting religious actors will be allowed to trump those long-standing rights in a new era.

What lessons are we to draw from this history, especially in light of the new campaign to amend state RFRAs? One lesson is that the current controversy about religion and discrimination is part of a long series of related conflicts, especially over marriage. For almost 50 years, equality has intruded into the blended religious and civil status of marriage, dividing those who welcome changes that reflect new understandings of equality and those who feel deeply threatened by those changes. Equally important, however, is the recognition that change has come before and has not resulted in lasting social conflict. Concepts of equality have been debated, deployed, and challenged in legislative chambers and church pews. Refusing accommodations will exacerbate the current conflict, say proponents. But history suggests otherwise. Denying religious exemptions may actually lead some religious groups to adjust to change that once seemed contrary to religious beliefs (as happened in the case of interracial marriage).

Change has been as important as continuity in American law and life. Religious groups have as often been advocates for change, as well as forces resisting such shifts. This was the case in the earlier battles over race discrimination, when religious leaders spearheaded the Civil Rights Movement at the same time that other religious organizations, like Bob Jones University, resisted it. And this is equally true today, when a strong religious campaign in favor of same-sex marriage plays an important role in combatting those who invoke religious interests against it.

Marriage has frequently been the focus of conflict over race, religion and equality. Religious accommodation has frequently been the last refuge of those who seek to escape the imposition of new anti-discrimination laws, especially in the field of sexuality and marriage. Bob Jones reached the right result more than thirty years ago. The newly proposed state RFRA bills would undo that result, abandoning our nation’s commitment to equality before the law. That would be a dangerous development, and a sadly counterproductive outcome for all religious interests.


Sarah Barringer Gordon is Arlin M. Adams Professor of Constitutional Law & Professor of History at the University of Pennsylvania. She is co-editor of Studies in Legal History, the book series of the American Society for Legal History, published by Cambridge University Press.

Nomi Stolzenberg is the Nathan and Lilly Shapell Chair in Law at the University of Southern California Law School. She is the director of USC’s Program on Religious Accommodation and co-directs USC’s Center for Law, History and Culture.