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What's Changed Since The First Religious Liberty Law Was Passed In 1993?


Defenders of religious freedom acts like the one that passed in Indiana last week have leaned on history. They noted that President Bill Clinton approved a federal religious freedom restoration act. They've added that the vote in Congress was nearly unanimous. Critics, as we've heard, have noted the federal and state laws are not exactly the same. But it's a strong rhetorical point. There is a federal law which was widely supported back in 1993. So many people approved of it back then that then-Vice President Al Gore joked about it at the signing ceremony.


VICE PRESIDENT AL GORE: The National Islamic Prison Foundation and B'nai B'rith, the Traditional Values Coalition and People for the American Way - we're doing something right here today.


INSKEEP: That was 1993. Clearly, something has changed. NPR's Jennifer Ludden looks at how religious freedom laws became so controversial.

JENNIFER LUDDEN, BYLINE: The impetus for the federal law was a case brought by Native Americans fired for having smoked peyote in a religious ceremony. The Religious Freedom Restoration Act known as RFRA was seen as a way to protect religious minorities from government intrusion - a popular cause.[POST-BROADCAST CORRECTION: We mistakenly say peyote was smoked at a Native American religious ceremony. In fact, peyote is ingested - often in a tea.]

MARCI HAMILTON: Nobody was really focusing on is it possible to give religious actors too much liberty?

LUDDEN: Nobody except maybe Marci Hamilton. She's with Cardozo School of Law and the author of "God Vs. The Gavel." She litigated some early cases and found that Christian conservatives wanted to use RFRA to challenge fair housing laws.

HAMILTON: So that as apartment owners, they could refuse to rent apartments to unmarried couples, single mothers and then same-sex couples.

LUDDEN: Still, the federal law was narrow. And as states passed their own laws, some courts ruled against religious plaintiffs, finding a compelling interest in upholding civil rights laws. Then came last year's Supreme Court decision on Hobby Lobby, says Jay Michaelson, a Daily Beast columnist and LGBT rights activist. The court ruled that certain types of corporations could cite religious freedom to deny contraceptive coverage to their employees.

JAY MICHAELSON: This turns RFRA's logic on its head - so not just a case where I want to practice my private religious practice. But I, as someone who wants to restrict the rights of others, should be allowed to do so.

LUDDEN: Michaelson says Indiana's law codifies this shift, saying that not only individuals but also religious groups and companies can file suit and that private parties can use the law even when the government's not involved.

MICHAELSON: The problem is that this is intended by its backers, as they say on their website and in their movies and in their propaganda, to allow religiously-owned businesses to disobey civil rights laws if they have a religious reason for doing so.

LUDDEN: Specifically, backers have said Christian florists, photographers and bakers should be able to refuse to take part in a same-sex wedding.

LORI WINDHAM: I think it's important to note first that most of the cases going on under these laws around the country have nothing to do with gay rights.

LUDDEN: Lori Windham is senior counsel with the Becket Fund for Religious Liberty. She says the biggest beneficiaries of RFRA laws have been religious prisoners. Just this year, a Muslim man won the right to grow a short beard while in detention. What's more, she says letting private parties use religious freedom laws is not new at all. A string of appeals court decisions have granted that right.

WINDHAM: RFRA doesn't say that religious people always win. In fact, religious people lose a lot of RFRA cases. RFRA sets the terms of the debate.

LUDDEN: Although opponents like legal scholar Marci Hamilton say it's precisely those terms that have changed.

HAMILTON: Over the years, the drafters of each successive RFRA have made it more beneficial for the believer and more difficult for the government or for private parties to defend themselves.

LUDDEN: This week's debate over religious freedom laws is seeing not just politicians but also businesses, sports leagues and music groups take sides. A law that began as a bipartisan love-fest has now joined the long list of issues that divide Americans. Jennifer Ludden, NPR News. Transcript provided by NPR, Copyright NPR.

Corrected: April 2, 2015 at 12:00 AM EDT
In this story, we mistakenly say peyote was smoked at a Native American religious ceremony. In fact, peyote is ingested — often in a tea.
Jennifer Ludden helps edit energy and environment stories for NPR's National Desk, working with NPR staffers and a team of public radio reporters across the country. They track the shift to clean energy, state and federal policy moves, and how people and communities are coping with the mounting impacts of climate change.
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