Religious Freedom Restoration Act: Bad Law or Bad Lawyering?

By on August 23, 2010

Is the Religious Freedom Restoration Act bad law? Two legal scholars debate.

Marci A. Hamilton

Marci A. Hamilton is a columnist for and the Paul R. Verkuil Chair in Public Law at Yeshiva University. She is the author of God vs. the Gavel: Religion and the Rule of Law and was lead counsel for the city of Boerne, Texas, in Boerne v. Flores (1997). She clerked for Justice Sandra Day O’Connor of the United States Supreme Court.

Howard M. Friedman
Religion Clause

Howard M. Friedman is professor of law at the University of Toledo and editor of Religion Clause, a blog devoted to legal and political developments in free exercise of religion and separation of church and state. It was named by the ABA in 2007 and 2008 as one of the 100 top legal blogs in the nation.

Part 1: Marci A. Hamilton: The Folly of the Federal Religious Freedom Restoration Act—and Texas’s Too

Recent cases applying the federal Religious Freedom Restoration Act (RFRA) and its cousin, the Texas Religious Freedom Restoration Act (TRFRA), underscore that these laws are simply wrongheaded, not to mention dangerous.

In Potter v. District of Columbia, the U.S. Court of Appeals for the District of Columbia held that the District was required to permit firefighters with facial hair to keep it, even though there was evidence on the record indicating that it is dangerous for firefighters to have facial hair.

In Barr v. Sinton, the Texas Supreme Court held that a small Texas town could not zone out halfway houses for ex-convicts from residential zones.

In this essay, I'll discuss these two cases and how RFRA and TRFRA caused courts to reach these absurd results.

Background: Federal and State RFRAs

The federal version of RFRA and its 13 state clones all impose strict scrutiny"the highest, most demanding level of judicial review"on neutral, generally applicable laws that substantially burden religious conduct. The burden initially rests on the believer to prove that the law imposes a substantial burden upon him or her. If that showing is made, the burden shifts to the government to prove that its law both serves a compelling interest and constitutes the least restrictive means that could be employed.

As I have written previously, RFRA was a congressional backlash against the Supreme Court's decision in Employment Div. v. Smith. There, the Court held that drug counselors who used illegal drugs"even if they were consumed during a religious ceremony"could not receive state unemployment compensation after they were fired.

RFRA was engineered by legal academics and religious lobbyists who misled members of Congress into believing that the Supreme Court had been applying strict scrutiny in every free exercise case until Smith. Through exaggeration and omission, they paved the way for the legislative enactments that now are responsible for the unfortunate results in cases such as Potter and Barr. (The Court invalidated RFRA in Boerne v. Flores, but Congress then re-enacted RFRA to apply to federal law. The Supreme Court has not yet addressed Congress's power to enact RFRA as applied to federal law.)

No one has summarized what is wrong with RFRA legislation better than District Court Judge James Robertson in the Potter case. I'll reproduce his analysis here, but with citations omitted:

Justice Holmes once wrote that it brought him the greatest pleasure to enforce those laws which he believed "to be as bad as possible" because he thereby marked the boundary between his beliefs and the law. His faith was never tested by the Religious Freedom Restoration Act of 1993 (RFRA). RFRA, by its own terms, imposes upon the courts of the United States the duty of striking sensible balances between religious liberty and competing prior governmental interests, an obligation whose faithful performance demands the very kind of inquiry judges have tried to avoid since the advent of rational basis review in the New Deal era.

The dispute in these RFRA cases"as in most RFRA cases"is precisely the sort of police power matter that is best entrusted to the politically accountable branches. Courts have little competence to locate and set the proper boundary between the accommodations demanded by persons with religious needs and the general safety and welfare of the public. Without RFRA, it would not be the business of the judicial branch to decide whether it is safe enough for a firefighter to wear a religiously required beard, or whether the mission of a fire brigade is compromised by steps taken to accommodate this religious expression. Yet, whether or not it was wise to assign such questions to the courts, Congress has done so, and I am charged with answering them here.

The two cases I discuss below, Potter and Barr, highlight how these laws force judges into the role of unilaterally crafting public policy. Unlike the legislative process, though, where all voices can get a hearing and then public policy is hammered out, RFRA sets up a situation where the loudest voice in the mix is that of the religious entities, who drown out the legitimate concerns of those affected by the religious conduct at issue, who probably cannot even intervene in the litigation to make their case.

Potter v.District of Columbia: Firefighters, Safety, and RFRA

The Potter case arose because District of Columbia firefighters sued the District for the right to have facial hair despite the fire department's regulations. At the time the lawsuit was brought, the department permitted an exemption from its no-hair policy for medical reasons but did not do so for religious reasons.

When the U.S. Court of Appeals for the Third Circuit addressed such a rule in 1999 in FOP v. City of Newark, it held it unconstitutional to make such a distinction. That decision made sense, because if a department can live with the exemption for some, then it is hard to explain why it cannot live with the exemption for others.

The District of Columbia, though, when faced with the prospect that its policy would not be upheld on constitutional grounds, altered the policy by simply getting rid of the exemption for everyone. In other words, D.C. really did have serious safety concerns, and for that reason, it chose a blanket rule against facial hair rather than a blanket rule permitting it. When the religiously motivated firefighters called the District's bluff, accusing the District essentially of pretext, the District responded by reinforcing the policy. As a result, neither medical nor religious reasons were sufficient to get around the department policy, which is very good evidence that the policy was based on important public policy reasons and not a pretext to discriminate against religion.

In a pre-RFRA world, that would have been the end of the dispute. Religious entities could argue against discrimination, but they did have to abide by neutral, generally applicable safety regulations.

With RFRA, though, obedience to the Constitution is not enough. RFRA gives religious actors rights they never had before, and it gives courts the uncomfortable job of weighing public policy in ways unprecedented since the 1930s.

Thus, in Potter, the district and appellate court decisions are rife with acronyms for self-contained breathing apparatus (SCBA), air-purifying respirator (APR), and powered air-purifying respirator (PAPR), along with judicial assessments regarding the effectiveness and safety of the apparatus with and without facial hair. Such assessments are a job for regulators and the government scientists and engineers who advise them"not for judges.

Everyone agrees, as they must, that safety for firefighters is a "compelling interest." Accordingly, the battle was over whether the department had adopted the least restrictive means for accommodating the religiously motivated firefighters with facial hair.

As only courts can do, the court sided with the religiously motivated firefighters not because it was shown that facial hair was safe but rather because D.C. had not carried its full burden of proof. In particular, the court held that D.C. had not proven that it had adequately balanced safety against all available alternatives that would have been less restrictive to the religiously motivated firefighters.

In a telling concurrence, Judge Williams metaphorically threw up her hands and said that, at the very least, this case should have gone to a jury. It was her view that the debates about the available data on facial hair and about firefighters' safety both created disputed issues of material fact that should not have been decided on summary judgment.

Judge Williams made the troubling observation that "if the sole aim of the law were an open search for truth, we would plainly reverse" and hold in favor of the District's blanket no-facial-hair policy. But, she continued, "Unfortunately for the District, its own muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome." The judge went on to implicitly criticize the district court for not ferreting out the evidence within the record showing that facial hair is a danger.

Overall, Judge Williams deemed the outcome "extraordinarily unsatisfactory""leading to an "experiment" in which the D.C. fire department will send its firefighters into danger scenes, some with beards, while other departments observe the no-facial-hair rule. She expressed the hope that the "difference will prove inconsequential." But should that not be the case, she also made sure to point out that even permanent injunctions like the one in place in Potter can be altered in the face of new facts.

Barr v. Sinton: Halfway Houses for Ex-Convicts in Residential Neighborhoods

In Barr v. Sinton, Pastor Richard Wayne Barr had bought two houses in residential neighborhoods within a 2.2-square-mile town in Texas to use as halfway houses for ex-convicts. The town had no regulation regarding such uses, but it soon enacted one, which forbade a "correctional or rehabilitation facility [to be] located in the City of Sinton within 1000 feet of a residential area, a primary or secondary school, property designated as a public park or public recreation area by any governmental authority, or a church, synagogue, or other place of worship." The law was both neutral and generally applicable and hardly uncommon. But because the law was generated by the actions of a religiously motivated individual, the Texas Supreme Court invalidated the law.

The trial court and the appellate court upheld the regulation, but the Texas Supreme Court reversed. Once again, the government lost because the court held that it did not carry its burden of proof satisfactorily for the Justices making public policy.

In essence, the Texas Supreme Court ruled that no city, of any size, may exclude a religiously motivated halfway house from its jurisdiction without proving that the use can occur somewhere else nearby. The Texas Supreme Court held that "there is no evidence of any alternate location in the City of Sinton where the ordinance would have allowed Barr's ministry to operate, or of possible locations outside the city." Moreover, it held that the enforcement of a zoning law is not a compelling state interest. That would be news to a lot of homeowners who have invested their life savings in a home in a particular district due to the zoning constraints of the zone, but the truth is that RFRA (and its successor RLUIPA) invite such conclusions.

As often happens in these cases, the Court treated the statutory rights at issue, created by Texas's RFRA, as though they were constitutional rights. It reasoned, "Although the government's interest in the public welfare in general, and in preserving a common character of land areas and use in particular, is certainly legitimate when properly motivated and appropriately directed, the assertion that zoning ordinances are per se superior to fundamental, constitutional rights, such as the free exercise of religion, must fairly be regarded as indefensible."

The Texas Court also emphasized the degree to which the "least restrictive means" test forces cities to form their zoning policies to accommodate particular religious entities. In a statement that should leave every city planner and leader in America deeply concerned, the Court gave Stinton no way out:

The City also asserts that Ordinance 1999-02 serves a compelling interest in advancing safety, preventing nuisance, and protecting children. But there is no evidence to support the City's assertion with respect to "the particular practice at issue""Barr's ministry. In fact, the only evidence is to the contrary: Barr testified that he admitted only nonviolent offenders to his program, and no aspect of his operation ever presented a safety problem, a nuisance, or a threat to children. He and the city manager both testified that they were not aware of any complaints of disturbance. The City cites no studies or experiences with halfway houses to support its professed concerns. The City was not, of course, required to wait until disturbances occurred, possibly causing significant harm, before taking measures to prevent them, but neither could it assert a compelling interest in practically excluding a religious ministry from operating within the city limits based on nothing more than speculation.

Obviously, the City was hamstrung on this point, because the harm to neighbors and children had not yet occurred. Yet what parent and homeowner does not know in his or her gut that having recent ex-convicts live next door is a potential problem? Non-violent drug abusers deal with violent drug dealers all the time, and the prison environment from which the ex-convict is emerging is hardly conducive to producing mild-mannered members of society. They go to halfway houses to re-acclimate to society.

Nor do the courts in these cases give any credence to concerns by homeowners about the value of their properties if their neighbors are now a collection of ex-convicts. Is there any real estate salesperson in the United States who would say that a home next to a halfway house is as valuable as a home next to another home? The common values shared by homeowners all over the country get dropped out of these cases, because the courts are making public policy with only two entities before them"the religious believer(s) and the government.

Overall, the Barr decision is highly reminiscent of the Texas Supreme Court's unfortunate decision to send the children of the Fundamentalist Latter-day Saints from the Yearning for Zion Ranch back to an environment that was inherently abusive. Months after the Court did so, Texas Child Protective Services issued a report documenting widespread sexual abuse within the group, as I discussed in a previous column. By then, however, the children were no longer under the state's care and back in the environment that had endangered them.

Based on these two misguided rulings, one must wonder whether the members of the Texas Supreme Court must take one oath against common sense and another against taking seriously parties' rational concerns for the safety of children.

At least in the Barr case, though, the folly is not attributable to the court alone. TRFRA is a creature of the Texas legislature. Like Congress's RFRA, Texas's, too, has hardly led to a brighter day of religious liberty. Instead, it has authorized judicial intervention in public policy decisions that serve religious triumphalism at the cost of subjugating crucial safety interests"and these are the interests of our most honorable, the firefighters who protect us and our homes, and our most vulnerable, our children.

Part 2: Howard M. Friedman: RFRA Is Not Folly; Rejecting It Is: A Response to Marci Hamilton

The Religious Freedom Restoration Act (RFRA) is Congress's attempt to strike an appropriate balance between religious liberty and government regulation. It allows the federal government to impose a substantial burden on the exercise of religion only if it has a compelling reason to do so. Even then, governmental authorities must seek the least restrictive means to further their regulatory goals. RFRA is not a perfect statute. Courts have not always applied RFRA correctly. However, Marci Hamilton is off the mark in her critique of RFRA jurisprudence.

Congress Was Emphatic

First, cases applying RFRA are not examples of judicial activism. They are not examples of judges making the law to suit their philosophical preferences as they did under the rubric of "substantive due process" in the 1930s. Instead, courts are doing exactly what Congress told them to do in 1993 when it enacted RFRA. Hamilton obviously does not like the directions Congress gave to the courts, even though Congress gave these directions rather overwhelmingly. RFRA was passed by voice vote in the House and by a 97–3 vote in the Senate.

Hamilton says that "legal academics and religious lobbyists" misled Congress. That seems unlikely. This was not a bill snuck through in smoke-filled committee rooms. Hearings were held over a three-year period. Amendments and a competing version of the legislation were introduced. In short, after extensive deliberation, legislators from both sides of the aisle concluded virtually unanimously that exceptions from federal regulatory laws should be carved out for sincere religious beliefs in many cases where regulatory concerns are not all that pressing.

RFRA actually ordered states to make the same kind of religious accommodation. However, the Supreme Court in Boerne v. Flores held that Congress lacked the power to act in such a sweeping manner to qualify state regulation. In response, the political branches reaffirmed their concern for the rights of religious objectors. A number of states enacted their own versions of RFRA, and Congress acted again to require states to honor the American tradition of religious tolerance. It reaffirmed the strict scrutiny test of RFRA, though this time with a narrower reach. In the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), Congress focused on two areas in which states were historically refusing to create exceptions to neutral general regulations: zoning decisions and prison rules.

Bad Lawyering Is the Problem

In criticizing RFRA, Hamilton focuses on two cases that she suggests epitomize RFRA's problems. Neither case, however, reveals a problem with RFRA. In the first, Potter v. District of Columbia, a firefighter who wore a beard for religious reasons wanted D.C.'s safety forces to accommodate him by allowing him to use a type of facemask that he could wear with his beard. In the case, it is true that the court had to consider rather technical details of the relative safety of "self-contained breathing apparatus" as opposed to other kinds of facemasks.

Hamilton is correct that in a perfect world, this kind of comparative determination is made by regulators advised by scientists and engineers. If that had been done, D.C. could have easily won the case at trial by presenting its rulemaking file. Instead, it scrambled and came up with little to justify its decision even given this second chance after the fact.

The problem is that here, as is often true, courts are called upon to deal with situations that did not arise in the perfect world of government decision-making. Our legal system creates presumptions and pleading rules to help the courts decide these kinds of messy cases. Potter is merely an example of that system working in the face of a muddled litigation strategy by D.C. If Potter reflects a problem, that problem is the quality of the lawyering on behalf of the D.C. fire department, not the quality of RFRA.

They're Judges, Not Theologians

The second decision that Hamilton criticizes is a zoning case. It is challenged not under RLUIPA but instead under a state RFRA. It is a particularly good example of the "not in my back yard" syndrome. A pastor, himself an ex-convict, opened two residences as halfway houses to assist a few non-violent low-level offenders released from prison to transition back into the community. The community's response was to pass a new zoning law that effectively barred any rehabilitation facility from locating in the small town of Sinton, Texas. The city council cited vague concerns of "public safety, morals and general welfare" to justify the new law.

Whether it be safety or zoning, we normally allow legislatures to generalize–i.e., to regulate more broadly than necessary so that administrators do not have to make endless case-by-case adjudications. But in some instances that kind of over-generalization is inappropriate. An over-generalization that substantially burdens a sincere religious belief, in Congress's view, is one of those situations. In those cases, we must be certain that the regulatory burden is necessary. We must be sure that true need, not hostility or fear of the unfamiliar, lies behind a regulatory mandate or prohibition.

There is no question that this creates some difficulties in modern America. One of the most significant problems is the endless variety of religious belief–especially in a generation that is willing to combine elements of various traditions to create designer, individualized religious systems. Virtually any regulation may impact someone's religious beliefs and could at least in theory amount to the substantial burden on the exercise of religion banned by RFRA.

Just as judges are often not very good economists, so they are rarely good theologians. They are often ill-equipped to define what constitutes a substantial burden. The most recent example of that is last year's 9th Circuit decision by an 11-judge en banc panel in Navajo Nation v. U.S. Forest Service. Various Indian tribes challenged the government's plans to use recycled waste water for artificial snow at Arizona's Snowbowl ski resort that operates on federal land. The tribes complained that this would spiritually contaminate the San Francisco Peaks, which they consider sacred. A majority of the judges concluded that merely decreasing the spiritual fulfillment that plaintiffs get from practicing their religion does not amount to a substantial burden on their religious exercise. Yet in many religious traditions, spiritual fulfillment is the core of religious exercise.

Of course, in all of these cases, a difficult question is why we should allow religious objections to trump regulations when strongly held non-religious objections do not suffice. While that may seem illogical, Justice Holmes wisely observed over a century ago that "the life of the law has not been logic; it has been experience." Experience tells us that religion remains a powerful force in the United States. Refusal to accommodate religious practices–even ones that seem strange to us–is likely to lead religious adherents to become more isolated and insular. To the extent that they are unable to function as an integral part of modern society, many will segregate themselves into locations and occupations that separate them not only from the mainstream economy but also from the mainstream value system of the country.

A Small Price to Pay

Certainly the nation is better off–and I believe religious individuals are better off as well–if believers can be mainstreamed rather than forced into the fringes of society. It helps all of us when the Wal-Mart cashier wearing a hijab, or the Sikh police officer wearing a turban matching his uniform, is accepted as routine. That type of social integration also tends to temper the outlook of fervidly religious adherents. Accommodation often wears the sharpest edges off of tendencies toward religious zealotry, extremism, or intolerance. Surely a bit of logical dissonance, if that be the case, is a small price to pay for that result.

Part 3: Marci A. Hamilton: The Dangerous Folly of RFRA: A Response to Friedman

Howard Friedman attempts to excuse the indefensible by arguing that Congress was "emphatic" in passing RFRA, that harm to the public should be blamed on bad lawyering, and that experience mandates that religious believers should have the power to break laws passed to protect the public.

I do commend Friedman for not engaging in the hyperbole about RFRA's passage that its proponents usually inflict on the discourse. At least he does not claim that RFRA was passed "unanimously" but rather by "unanimous consent" in the House (a procedure that requires few to be present and yields no recorded vote).

Moreover, no one understood what RFRA really meant, least of all Congress. The ACLU, one of its strongest proponents, did not understand at the time that this new law had the capacity to undermine fair housing laws. The members of Congress who voted for RFRA did not understand that it would overrule landmark cases involving prisons, federal and local land use, and the military. They were told by admired legal academics that RFRA would simply "restore" free exercise law, but that was both an exaggeration and a serious misstatement for those who claim to be experts in the field.

I would also invoke Justice Holmes's insightful remark that "the life of the law has not been logic; it has been experience" but to very different effect.

Legal Swiss Cheese

The experience of RFRA in action proved to be a misguided–and even dangerous–approach. Its folly became apparent relatively quickly. After it was declared unconstitutional only three years after it was enacted in Boerne v. Flores, its proponents rushed back to Congress, which all too willingly attempted to re-enact it in toto. Fortunately, child advocates, state and local governments, and others lobbied against it, defeating it in the end.

There began a movement for states to enact their own versions of RFRA, but only thirteen did so. The early versions had no exceptions, but the later ones included exceptions in various categories. Why did the RFRA formulation become Swiss cheese? Because experience with RFRA revealed it for what it is: religious triumphalism at the expense of public safety.

It is chilling to read Friedman's dismissal of the threats to public safety arising from the RFRA holdings in Potter and Sinton. He excuses the results in these cases as examples of "bad lawyering." That is no answer to the fact that RFRAs have led to bad public health and safety results. Without RFRA, these threats to public safety would not be permitted.

I would add to those two cases the recent Fifth Circuit decision in Merced v. Euless, which employed the Texas RFRA to permit a Santerian priest to slaughter at least seven goats and sixteen chickens in his home, feed them to those in attendance, and discard the carcasses in plastic bags–with no regard for dangers such as cholera and E. coli.

What We've Learned

There are important lessons to be learned here. First, there is no public health or safety interest that is secure from religious believers. When RFRA was new, its defenders often argued that there was no reason to be concerned about dangerous results, because no court would permit public health and safety to be threatened. Not true.

Second, when courts apply RFRA, they become trapped in its circumlocutions and abandon basic common sense. They do not–because they cannot–perform the wide-ranging investigation that would yield wise answers to hard public issues like safety for firemen, the protection of children in neighborhoods, or deadly disease prevention. RFRA statutes operate all too often as blinders.

Third, RFRA is a new regime, not a re-enactment of the long line of Supreme Court free exercise cases preceding it.

Finally, Friedman ignores the dialectical relationship between society and religion. Laws often–and appropriately–influence the development and evolution of theology and religious organizations. Slavery was widely defended on religious grounds. The Fourteenth Amendment and the civil rights movement radically curtailed religiously motivated discrimination. The early Mormon Church believed in the subjugation of women and the practice of polygamy. That is no longer true for the mainstream Mormons, and the law played a central role in those positive developments.

An Unworkable Law

If the conflict between law and religion were limited to Friedman's two examples–the Wal-Mart cashier wearing a hijab and the Sikh policeman wearing a turban–I would be much more sanguine about RFRA. Neither of those examples, though, involves the very real and important public health and safety interests that were undermined by RFRA in Potter, Sinton, and Merced.

Part 4: Howard M. Friedman: The Attack on RFRA Is a Distraction: A Surrebuttal to Marci Hamilton

Marci Hamilton's piece beginning our exchange started off with the proposition that state and federal RFRAs are "wrongheaded." She then seeks to write briefs in support of her conclusion. The value of religion deserves more respect than that. The difficult issue of accommodating religious belief deserves better.

The Skewed Cost-Benefit Analysis

At times, religious practices are a significant enough threat to fundamental societal values that they cannot be permitted to continue. However, it is very easy to overestimate the threat to public health, safety, and welfare from a practice that is unfamiliar and, to someone outside the faith, seems "silly."

Imagine a city ordinance enacted to prevent the spread of the H1N1 flu virus that prohibits serving beverages to the public in a glass or cup that has not been washed after use by another. How should the court evaluate the risks involved when the ordinance is challenged by a Catholic church that uses a common communion cup? Suppose a state law prohibits "unnecessary surgery" from being performed on a minor. How should a court evaluate the harsh cries about psychological damage to children when the law is applied to the almost universal practice by Jews and Muslims of circumcising their male children? From the outside, from people for whom these rituals are meaningless, it is easy to find that arguable risks outweigh ephemeral benefits. But from inside the religious tradition, the damage from exaggerating ephemeral risks are significant and lasting. State and federal RFRAs are an attempt to give courts guidance in balancing costs and benefits in situations such as these.

Hamilton's focus on the recent Fifth Circuit decision in Merced v. Euless is an example of how risks can be overblown. Santeria sacrifice of animals to various orishas seems a bizarre ritual to those outside the faith. However, that is not the way Santeria practitioners view the practice. Jose Merced had been performing these animal sacrifices once a year for sixteen years without incident and without any health issues arising. His disposition of the non-edible remains of the animals was no different than disposition of remains of animals bagged by hunters and brought home. The city had no problem with this practice by sportsmen. Yet when a neighbor became upset by the strange goings-on in the room attached to Jose Merced's garage, authorities stepped in.

Who Cares How Much Congress Understood?

Much of Hamilton's argument turns on her claim that Congress did not understand the true impact of RFRA when it voted on the bill. Without re-debating whether or not that was the case, her entire argument is a red herring. If the test for the legitimacy of a federal statute is that legislators fully understand its impact, there are probably few laws that would remain unchallenged. I would venture that most of the Internal Revenue Code, the vast majority of complex regulatory legislation, and many routine bills passed by unanimous consent could all be questioned on this ground. Moreover, whatever was the case in 1993, Congress now understands the impact of RFRA. It is free at any time to amend or repeal RFRA and has clearly chosen not to do so.

Really, Hamilton's argument is with state RFRAs. The federal law, since the Supreme Court narrowed it in Boerne v. Flores, applies only to federal legislation, most of which does not raise the kind of concerns central to Hamilton. The main federal RFRA example Hamilton cites is a case in which the RFRA essentially acted as a local regulation for the District of Columbia. It is one thing to argue that Congress was misled in 1993; it is harder to argue that the legislators in all thirteen states that have enacted their own RFRAs were misled as well. Moreover, a dozen additional states have interpreted their own constitutions to give enhanced protection to religious practices.

Hamilton's incessant crusade against RFRA undermines the debate we should be having on how to balance the increasingly diverse religious practices in our country against true health, safety and welfare concerns. Her tone and her refusal to concede any place for religious sensibilities place many who might be willing to engage in a more nuanced conversation on the immediate defensive. Let me furnish as an example the large number of issues that arise in an area of particular interest to Hamilton: the clash between society's interest in the welfare of children and parental rights. The issues involved are more nuanced ones than a mere attack on RFRA suggests.

An Example of a Needed Conversation: Child Welfare v. Parental Rights

Few areas are as highly charged, or as important to society, as child welfare. However, we also have a strong tradition in this country that parents, not government, have the right to determine how their children should be educated, raised, and disciplined. A series of clashes in this area in recent years highlights the still-unresolved nature of the problem.

The most persistent clash between religious belief and child welfare has been in cases of parental refusal, on religious grounds, to seek medical treatment for a child. Courts have by and large reached a consensus on how to decide these cases when doctors or hospitals seek to overrule parental objections. Less of a consensus has been reached on whether a parent should face homicide prosecution if, after faith-healing has failed, his or her child dies.

More difficult questions arise when the state perceives not an immediate health threat but a more general threat to a child's welfare from the environment in which the child is being raised. The most prominent recent example was the attempt last year by Texas to remove over 400 children from the compound of the FLDS sect where the children were living with their families–often families in a polygamous relationship. Ultimately the Texas Supreme Court held that the state lacked a sufficient basis to place the children in foster care and could have fashioned narrower remedies to protect them while allowing them to remain at home.

A different sort of custody issue has arisen more recently in Florida in the case of seventeen-year-old Rifqa Bary who–depending on the version of the facts one believes–fled or was lured away to Florida from her parents' home in Ohio. Rifqa, who had converted from Islam to Christianity, claimed her father had threatened to kill her because she had abandoned Islam. That claim was denied by her parents, as Florida's courts placed the girl in temporary protective custody. The jury is still out on whether Rifqa was the victim of exploitative Christian conversionary efforts or the victim of an intolerant Muslim family. In either case, the question of free exercise rights of teenagers who have not quite reached the magic age of legal adulthood remains an issue that deserves more rational debate than it has received in the outpouring of anti-Muslim rhetoric generated in the blogosphere by this case.

Another example of tensions over child welfare implicates international law. Consistent religious objections (as well as political ones) have left the United States in the dubious company of Somalia as the only nations that have refused to ratify the United Nations Convention on the Rights of the Child (CRC). The CRC–which sets out the fundamental rights of children to survival and to protection from abuse and their right to participate fully in family, cultural, and social life–has been vilified by some religious conservatives. They claim that it would undermine parental rights, prevent Christian schools from teaching that Christianity is the only true religion, prevent parents from spanking their children, allow a child to seek governmental review of every parental decision, and give every child an enforceable right to leisure. They persist in these claims despite the fact that none of the threats seem to have materialized in other Western nations that have adopted the convention. Those who believe that religious values impel adopting the CRC need to be able to convince opponents that support for the document is a religious imperative, not an attack on religion. A more sophisticated conversation is necessary, and it will be impossible to have it so long as debates are framed in simplistic terms that have little sympathy or appreciation for religious beliefs and values.

An Unnecessary Distraction

In summary, a debate about RFRA is a distraction from more important issues that implicate the relationship between religion and law. Hamilton is correct in observing that laws often influence the development of theology and religious organizations. She is right that the Civil War and its aftermath largely ended religious support for slavery and that the civil rights movement eventually lessened religiously motivated racial discrimination. However, today we cannot afford the kind of societal upheavals that shook the foundations of our nation in the 1860s and the 1960s. Social values can affect religion and religion can impact public debate without cataclysmic disruptions only if there is a respectful exchange of views between the two realms.