The Movement Advancement Project ( MAP ) has released its latest report highlighting the effects of federal and state Religious Freedom Restoration Acts ( RFRA ) on the LGBT community.
The U.S. Congress passed the first of these RFRA laws, establishing a legislative test for laws that burden religious exercise, in 1993. When the U.S. Supreme Court, in 1997, ruled that the federal RFRA law didn't apply to state laws, a number of states ( 21 ), including Illinois, passed broad explicit constitutional or statutory religious exemption RFRA laws of their own. This translates to 43 percent of the LGBT population living in states with these broad RFRA laws, according to the report's findings.
"Additionally, Michigan, North Dakota and Virginia permit state-licensed child welfare agencies to refuse to place and provide services to children and families, including LGBT people and same-sex couples, if doing so conflicts with their religious beliefs," said Movement Advancement Project LGBT Movement and Policy Analyst Heron Greenesmith, Esq. "North Carolina has a targeted religious exemption law that permits state officials to decline to marry couples of whose marriage they disapprove. and Kansas has targeted religious exemption that permits faith-based organizations to deny services to married same-sex couples."
Along with these existing laws, the report states that 17 state legislatures have introduced RFRA bills in 2015 alone with more to come in Sept.
According to the report, "when seeking an exemption from federal law under RFRA, a person must show that the burden imposed by the federal government is a 'substantial' one. The Supreme Court has previously decided if a burden is substantial by looking at whether the law in question requires someone to do something that their religion forbids—or if the law prevents someone from doing something that their religion requires."
In the Burwell v. Hobby Lobby case the U.S. Supreme Court ruled that the federal RFRA law applies to some private businesses thereby expanding the definition of person from an individual person or religious communities to include businesses. This ruling gives 'closely-held' for-profit corporations the ability to be exempt from the requirement in the Affordable Care Act ( ACA ) that mandates certain kinds of contraception coverage.
The report goes on to say, "The current increase in religious exemption legislation and litigation across the county is no coincidence. The volume of laws and lawsuits is increasing in reaction to the nation-wide expansion of the freedom to marry for same-sex couples, the increase in nondiscrimination protections for LGBT people and the passage and rollout of the ACA, with its mandate that employers cover essential health benefits, including contraception."
Illinois' RFRA law has been used in a case that is pending in administrative court. "The Timber Creek Bed and Breakfast claims they should be exempted from Illinois' protections against LGBT discrimination on the basis of public accommodation. The wedding venue refused to host a same-sex couple's civil union so the couple sued under the state's non-discrimination law," said Greenesmith.
Overall the report notes that "the original federal RFRA may have been passed with good intentions, but the Supreme Court's interpretation of the law in Burwell v. Hobby Lobby—alongside states' ever-increasing roster of religious exemptions, both broad and targeted—raise serious concerns about how these vague exemptions are being used to harm others, interfere with law enforcement and undermine the rule of law. While proposed religious exemption legislation usually doesn't explicitly mention the LGBT community or any other community being targeted for discrimination, the timing of the conversation and the explicitly anti-LGBT rhetoric used to justify these exemptions makes it clear that religious exemptions are being used as a vehicle to harm LGBT individuals and their families."
View map at www.windycitymediagroup.com/pdf/RFRAReportMapSNIP-color.pdf .
