This story is over 5 years old.

How Hobby Lobby Paved the Way for the Current Rush of Religious Freedom Laws

Despite the blowback in Indiana, 15 other states are considering religious liberty bills in the wake of widespread acceptance of gay marriage and the Supreme Court's Hobby Lobby decision.
Photo by Doug McSchooler/AP

A total of 15 states across the US could follow Indiana's lead in enacting broad "religious freedom" laws this legislative session, despite the intense blowback and backtracking now occurring in Indiana.

Indiana Governor Mike Pence said today he will "fix" the Indiana Religious Freedom Restoration Act, which he signed on Friday, in order to make clear it wouldn't allow discrimination against LGBT people in the Hoosier State. He didn't give any details, however, on how he or state legislators might do that.


Pence and other Indiana lawmakers are facing enormous backlash after passing the bill, with corporate leaders including the heads of Apple, Gap, Levi Strauss, and Salesforce all condemning the law. The Indianapolis Star pleaded with lawmakers in an op-ed today to "fix it now."

While unrest continues to brew in Indiana, however, lawmakers in Arkansas could vote on a Religious Freedom Restoration Act of their own as early as Thursday. And a proposal in North Carolina has been introduced into both the House and Senate of the state legislature there.

Those three states join 13 others that have introduced RFRA legislation in 2015, according to the National Conference of State Legislatures.

Related: Petition to Move NCAA Out of Indiana Over 'Religious Freedom' Law Gaining Momentum

Many supporters of the RFRA bills in those states say they are merely joining 20 other states around the country that have RFRA laws on their books, and are following a template created when Congress, with bipartisan support, passed the federal RFRA in 1993.

"The Religious Freedom Restoration Act reflects federal law, as well as law in 30 states nationwide," Pence wrote in a Wall Street Journal op-ed this week.

But some legal experts say that claim is dubious, given the timing of all the new RFRA laws being introduced. The sudden rush to pass state RFRA laws has more to do with the Supreme Court's 2014 decision on Hobby Lobby, in which companies were allowed religious exemptions, than it does with the reasons the federal law was passed, they said.


"Hobby Lobby introduced a whole new gloss on the RFRA law," Boston College law professor Kari E. Hong told VICE News. "Now a lot of advocates are trying to use it."

Ruthann Robson, Professor of Law at the City University of New York (CUNY) School of Law, said that from her perspective it was a combination of the Hobby Lobby decision in 2014 and the widespread acceptance of same sex marriage that has prompted conservative states to action.

"There is a perceived need for it on the basis of some religious groups, because of the popularity of same sex marriage and then the power that the Supreme Court gave a similar law in Hobby Lobby vs. Burwell," she said.

Up until the Supreme Court's 2014 decision on the Hobby Lobby case, the federal and state RFRA laws were merely used to ensure that the government accommodated individuals' religious activity, Hong said. The original federal RFRA law was created in response to a case in which an Oregon Native American man had been prosecuted for using peyote in a religious service, and lawmakers decided that the government should protect such rights.

Following a 1996 case in which the Supreme Court decided the RFRA protections only applied at the federal level, a slew of states passed similar laws protecting citizens' religious rights from being infringed on by the state, Hong and Robson said. Those states are referenced frequently in the current debate over RFRA laws, but Hong and others said the laws emerged from different contexts.


"Hobby Lobby was the first time [corporate protections] were made available, so they've been using RFRA to shield companies from providing birth control and other objections, and to allow corporations to discriminate against LGBT people," Hong said.

But not all legal minds agree. Eugene Volokh, a law professor specializing in church-state relations and free speech at UCLA, said that Indiana and other states that are trying to enact state RFRA laws are merely copying the federal law.

"The Indiana law is modeled on the federal law, and many states have adopted local laws modeled on the federal one. There's very little difference," Volokh told VICE News.

The only effects gay marriage and the Hobby Lobby ruling had, Volokh said, were making RFRA laws more politically charged and seemingly controversial than they were 20 years ago, when states first began passing them in response to the federal law. He points out that many traditionally liberal states have RFRA laws on their books, including Massachusetts, Minnesota, and Michigan.

Still, the law that passed in Indiana, and the proposed laws in North Carolina and Arkansas, include language that explicitly acknowledges corporations are treated the same as people under the exemption law, which is language created in the wake of the Hobby Lobby decision. Like the federal RFRA laws before them, the state laws being ushered through legislatures now have a good chance of ending up in higher courts, and the topic is "ripe" for the Supreme Court to decide on, Hong and Robson said.


"It seems fairly like the federal law, but it's always about how it's going to be applied," Robson said, noting that if the bills pass, large questions loom about how the new RFRA laws will be enforced — including what counts as a "substantial burden" on a person or company's religious practices.

But even if the laws don't pass, individuals and businesses in most states can discriminate against LGBT people anyway. Only 21 states have anti-discrimination laws that protect gay people, and even fewer have laws that protect transgender people.

"RFRA does not make it worse. It simply becomes a normative policy endorsement," Hong said.

The debate over RFRA laws and the urgency with which they are being ushered through legislatures shows that the country has not yet reached a consensus about gay marriage, despite the speed at which it's been legalized, Hong said.

"I think what this shows is there is still a segment of the population that is uncomfortable," she said. "There needs to be nationwide fix, something that is not just for Indiana."