8 ways RFRA stopped discrimination: Column

The federal government passed the Religious Freedom Restoration Act in 1993. It was authored by Chuck Schumer, passed with nearly unanimous support from both parties, and signed by President Bill Clinton. The legislation was needed after a Supreme Court ruling delivered by Antonin Scalia limiting religious freedom for Native Americans who smoke peyote as part of their religion. A later Supreme Court ruling ruled that the RFRA didn't apply to state or local governments. Twenty states passed RFRAs and another 13 have protections like the ones in RFRA.

And yet when Indiana passed the legislation last week, the media characterized it as nothing more than a bigoted anti-gay bill and celebrities and activists called for a boycott against the state. Despite RFRAs being around since 1993, no one can provide any evidence to substantiate the outlandish claims made against them. In fact, RFRA simply allows religious people to challenge government activities that encroach on their beliefs. They have to show that the government action substantially burdens a religious belief that they sincerely hold. And if they prove all that, it falls to the government to show that the challenged action is justified as the least restrictive means of furthering a compelling governmental interest. Having a RFRA doesn't mean that you know which side wins, it just sets the terms of the debate.

If it's not some newfangled invention designed to hurt gay people, what is it about? No better way to learn than by looking at some recent RFRA cases at the state and federal level.

If you oppose Religious Freedom Restoration Acts, these are the real people you are hurting.

1) Most recent RFRA winner Lipan Apache religious leader Robert Soto

Just a few weeks ago, on March 10, the federal government returned the eagle feathers it had seized nine years ago from a Native American religious leader and famed feather dancer Robert Soto. He had appealed the seizure of the eagle feathers, items central to his religion, for which he faced 15 years in a federal penitentiary and a $250,000 fine, on Religious Freedom Restoration Act grounds.

The federal government prohibits possession of eagle feathers without a permit and only grants permits to museums, scientists, zoos, farmers, large power companies and federally recognized tribes. Even though the Lipan Apaches are recognized by Texas, historians and sociologists, they're not recognized by the feds.

2. An arbitrary ban: Sikh federal employee Kawal Tagore

After being baptized in the Sikh faith, Kawal Tagore began carrying a kirpan, "an emblem resembling a small knife with a blunt, curved blade." It's one of five articles of faith baptized Sikhs are supposed to carry.

She was told to go home from her job with the IRS in a federal building in Houston and not to return. The building allowed scissors, knives, box cutters and other items with sharper blades. After working from home for nine months, she was fired. She sought protection under the Religious Freedom Restoration Act and on November 4, 2014, the government agreed to settle the case.

3) A necessary goat sacrifice: José Merced, Santeria priest

José Merced moved to Euless, Texas, in 1990. A Santeria Oba Oriate, or priest, Merced had performed certain animal sacrifices essential to Santeria for 16 years. But in 2006, Euless said he had to stop. This practice is in conflict with all sorts of generally accepted city codes in Texas.

Modern-day Santeria originated in Cuba and is a syncretism of Western African tribal religion and Roman Catholicism. There are only a couple Santeria temples in the world and none of them are in the United States, so worship takes place in the home. On special occasions such as ordination the worship calls for sacrifice of four-legged animals such as a goat. Merced sued and won his case in 2009.

4) When the ACLU supported state RFRAs: Adriel Arocha, long-haired Native American kindergartener

In order to enter kindergarten in the Needville, Texas, schools, Adriel Arocha, the son of Kenney Arocha and Michelle Bettenbaugh, was told he'd have to cut his hair. The school had general grooming policies, including that "(b)oys' hair shall not cover any part of the ear or touch the top of the standard collar in back." The policy's stated design is "to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority." The parents applied for an exemption but because their religious practices were handed down orally, they couldn't provide the necessary written documentation of their religious practice. The boy and his parents won their case.

5) A halfway house: Richard Barr and Philemon Homes

Philemon Homes is a Christian non-profit in Sinton, Texas. It provides housing and religious instruction to petty offenders released from state prisons. Richard Barr ran the non-profit, which was located across the street from Grace Christian Fellowship, the church he attended.

Sinton had no restrictions on such an operation when it first began but in 1999, the city council enacted an ordinance that banned the organization from existing within the city limits. According to the group that represented Barr and Philemon, "the Texas Religious Freedom Restoration Act (TRFRA), passed in 1999, which provides much needed protection for people of faith, churches, and faith-based organizations," was an important part of that victory.

6) Muslim prisoner fights to wear short beard: Abdul Muhammad

Abdul Muhammad is a Muslim incarcerated in Arkansas. He was not allowed to grow the 1/2 inch beard his religion commands even though Arkansas permits beards for other reasons. And the same beard would have been allowed in 44 state and federal prison systems in the country. In 2011, he filed suit. He won the suit using the "RFRA for prisoners" — the Religious Land Use and Institutionalized Persons Act. That bill was also signed by Bill Clinton.

Earlier this year, Muhammad won his case unanimously at the United States Supreme Court. They held that he'd shown the restriction was a substantial burden on his religious exercise.

7) The right to drink hallucinogenic sacramental tea: União do Vegetal

O Centro Espírita Beneficente União do Vegetal (UDV) is a Christian Spiritist sect with origins in the Amazon Rainforest, which had at the time of its case about 130 members in the United States.

The group receives a sacrament by drinking ayahuasca, a hallucinogenic tea banned by the federal government. The government seized 30 gallons of the tea when it was shipped to a Santa Fe congregation. The group sued to block this enforcement on the grounds it violated their rights under the Religious Freedom Restoration Act. Remember, the government isn't to substantially burden a person's exercise of religion unless it can demonstrate applying the burden represents the least restrictive means of advancing a compelling interest.

One thing that's interesting about this case is that everyone agreed that the ban was a substantial burden on the congregation. But that didn't mean that the congregation necessarily won their case. As Eugene Volokh explains, "finding of substantial burden on sincere religious beliefs simply shifts the burden to the government: The government may still justify the burden by showing that applying the law to the objectors is the least restrictive means of serving a compelling government interest." The feds argued it had to uniformly apply this law with no accommodations for the Brazilian church to advance its drug prohibition interest but the Supreme Court disagreed. União do Vegetal won.

8) Florida denies prisoners kosher meals: Bruce Rich

Bruce Rich is an Orthodox Jewish prisoner in Florida, one of the last remaining states in the country that doesn't provide kosher food for Jewish prisoners. He argued this violates the Religious Land Use and Institutionalized Persons Act of 2000, RFRA for prisoners.

Florida claimed it limited food options to control costs and maintain security. The Becket Fund for Religious Liberty, which took Rich's case, noted that 35 states and the federal government provided kosher meals without it posing a problem.

During the appeals process and after his appeals court victory, Rich withdrew his case once Florida began providing the necessary meals.

Mollie Ziegler Hemingway is a senior editor at The Federalist. A longer version of this article first appeared at The Federalist.

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