On March 26, several members of the North Carolina House of Representatives filed House Bill 348 – The NC Religious Freedom Restoration Act. The bill, with primary sponsors Rep. Jacqueline Michelle Shaffer and Rep. Dan Bishop, is one of several pieces of legislation nationwide that have attracted widespread media attention — with the most surrounding Indiana’s recently enacted RFRA law. If enacted into law, the NC bill would be codified as part of N.C. Gen. Stat. § 147, which prescribes rules for state officers — despite the fact that that its language applies to all North Carolina citizens.
In the 1990’s, the federal government passed a Religious Freedom Restoration Act that is in some ways similar and in some ways dissimilar to the North Carolina bill. Both aim to protect religious freedom from infringement by state action, and both apply a balancing test that requires the state to assert a “compelling” interest in order to justify burdening a person’s free exercise of religion. However, there are three key differences between the federal RFRA and several state RFRA bills, including that of North Carolina, that have led to a media firestorm.
First, the North Carolina bill explicitly includes protections not just for natural persons, but also for “any individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity.” The federal RFRA law does not contain specific language including such legal associations, but rather bestows rights on “any person.” However, while the language is different, it does not create a material legal distinction between the two laws. That’s not an argument, it’s a basic principle of statutory interpretation. “Any person,” when written in a federal statute, always refers to natural persons as well as partnerships, corporations, associations, etc., unless the statute explicitly says otherwise, a fact that the US Supreme Court made clear last year in Burwell v. Hobby Lobby.
Second, the North Carolina bill (like its Indiana counterpart) applies not just when a person’s exercise of religion is actually burdened, but also when it is likely to be burdened. Again, the actual legal ramifications of this language are relatively minor. Under the federal law, even though the “likely to be burdened” language does not exist, the principle is still the same — a person can request an injunction for impending harm if he or she can prove that, without the injunction, the harm will likely occur. That’s not a characteristic of RFRA laws, that’s just a characteristic of law in general. The NC bill simply makes this clear.
Third, the North Carolina bill (again, like its Indiana counterpart), appears to allow free exercise of religion to be used as a defense in a discrimination lawsuit brought by a private party. This truly may — may — be a substantial difference between the state RFRAs and the federal law, though it is not necessarily due to a difference in legislative intent. The federal RFRA was not clear on whether it applied to suits by private parties, leading to some ambiguity. However, as Prof. Josh Blackman recently noted in National Review, the majority of federal circuits have held that the federal RFRA does apply as a defense in suits brought by private parties.
It is likely that much of the media firestorm surrounding state RFRA bills is not based on any sort of actual legal analysis. Rather, it stems from the perceived intent of the law to provide cover for discrimination against homosexuals by private businesses. But how would such discrimination actually work?
Unfortunately, we have to resort to hypotheticals, as no state RFRA law has ever actually been successfully used to discriminate against homosexuals. But consider the case of Baronelle Stutzman, an Oregon woman who was recently found to be in violation of the state’s anti-discrimination and consumer protection laws for refusing to arrange flowers for a gay wedding. What if Oregon had an enacted version of North Carolina’s RFRA bill?
Were that the case, that gay couple could still bring their discrimination lawsuit. Ms. Stutzman would then be able to assert her religious beliefs as a defense in that proceeding. The court would then have to balance Ms. Stutzman’s RFRA claim against the state’s interest in assuring that this particular couple has access to Ms. Stutzman’s services. How would the judge rule? We really don’t know, because no court anywhere has ever ruled on this set of facts. In the best case scenario for Ms. Stutzman, the court rules in her favor and requires the couple to pay both her attorney’s fees and any compensatory damages suffered as a result of the suit. In the best case scenario for the couple, the court rules that the state has a compelling interest in preventing this particular case of discrimination, and allows their case to move forward.
Perhaps the true issues at play in the RFRA saga are the cultural principles underlying the debate, rather than the technical legal ramifications of the laws. Regardless, should North Carolina join Indiana in enacting its RFRA bill — albeit without Gov. McCory’s signature — residents of the Tar Heel state should prepare for a media firestorm of their own.