The cases of the sort Michael describes (and that Chris Lund has described in public work) are still out there; they still happen. And the cases Paul Finkelman imagines, in which state RFRAs justify all kinds of discrimination against gays, are not out there. They have not happened.
But gay rights and contraception are getting all the political and press attention. Both sides are to blame. Republican legislators who are only now getting around to enacting RFRAs didn't care about the generally small religious minorities in the cases that don't raise culture war issues. They and their predecessors weren't motivated to pass a RFRA back when all the other states were. They don't talk about those cases now, not because they aren't happening, but because they don't know about them and apparently wouldn't care if they knew. So they promise their base things about marriage equality that they can't possibly deliver. At the Republican debate in Houston, a reporter asked a long series of questions about religious liberty, and all he got from the candidates was gays and contraception. That's the only religious liberty issue they know about it. And then the other side plays off this rhetoric, and imagines horror stories with no basis in experience, and some that are beyond imagining. Emergency med techs could refuse to treat gays! The Indiana RFRA "feels very much like a prelude to another Kristallnacht." Both real "arguments" that got reported in the press as though they were serious. If anyone needs a narrative about why RFRAs are still needed, just consider the Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's Witness, She needed a bloodless liver transplant. It was available in Omaha. It was even cheaper than a Kansas transplant with blood transfusions. But Kansas Medicaid doesn't pay for out of state medical care. Neutral and generally applicable rule. Kansas argued that the state constitution should be interpreted to mean Smith. By the time she won that lawsuit on appeal, her medical condition had deteriorated to where she was no longer eligible for a transplant. Stinemetz v. Kansas Health Policy Authority, 252 P.3d 141 (Kan. Ct. App. 2011). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [mich...@californialaw.org] Sent: Monday, March 28, 2016 7:01 PM To: Law & Religion issues for Law Academics Subject: Re: Arizona, Indiana . . . and now Georgia Unfortunately, for many, the entire spectrum of "religious liberty" in the United States appears to revolve around LGBT rights. That may, in fact, be the case for religious "majorities" who are not otherwise adversely affected by facially neutral state laws that infringe upon their religious practices and who cry "persecution!" at the slightest provocation. But going back to the original Smith case where members of a native American group were denied their unemployment benefits because of peyote use, the people who could really benefit from state RFRAs aren't just visible on the surface but are the minorities whose situations need to be "teased out" from between the social cracks. Certainly Antonin Scalia, lauded for his "conservative" credentials, is often forgotten in his role of drafting the Smith decision in the first place, although now it is the conservatives who are on the losing end of the latest social/legal developments and who now claim to be most in need of RFRA's protections. Nor is it lost that the original proponents of RFRA often came from the left, and as Professor Brownstein notes, the California RFRA was vetoed by a Republican in 1998. RFRA exists for religious minorities such as a Sikh teacher in a public school who wears religious garb as part of who she is, not to proselytize. It is to protect an Orthodox Jewish person who is forced by state law to take an exam on Saturday. And yes, it is to protect a native American who may lose employment benefits because he uses peyote as part of a religious ritual. To understand the full value of RFRA, one must look to members of religious minorities and observe when they are unintentionally adversely affected by neutral laws. Then an effort must be made to attempt to to try to accommodate them. These kinds of situations normally won't make the headlines, but it is at the heart of why RFRA matters. Michael Peabody, Esq. Editor ReligiousLiberty.TV http://www.religiousliberty.tv _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
