Religious Freedom Restoration Act
The Religious Freedom Restoration Act (RFRA) is a federal statute Congress passed in 1993 in response to a 1990 Supreme Court decision that upheld the firing of two Native American men for using peyote in accordance with their religious beliefs. The decision frustrated both conservatives and liberals alike, prompting bi-partisan support of RFRA’s passage.
Under RFRA a federal law that is generally applicable, like the Affordable Care Act, cannot substantially burden religious practice unless it furthers a compelling government interest in the least restrictive means possible.
RFRA does not automatically apply to the states, though many states have looked to the federal RFRA as a model for their own legislation. Additionally some states have passed or tried to pass RFRA legislation that exceeds the protections found in the federal statute. Those state laws expressly permit private citizens to engage in conduct that would otherwise violate non-discrimination laws, on the grounds that they object to those laws as a matter of religious belief.
Conscience and Refusal Laws
“Conscience” or “Refusal” laws permit people and organizations to refuse to provide services, whether reproductive health care services or commercial services, if to do so would violate a sincerely held religious belief.
The details of these laws vary between jurisdictions, but their basic purpose is to permit people and organizations, primarily health-care providers and institutions, to refuse to provide abortion, sterilization, contraceptive services, training, and coverage under the guise of religious freedom. Variations of these laws also permit religious organizations, and, in some cases, public and private businesses, to legally refuse service to LGBTQ people based on the owner’s religious belief.
Some of these laws expressly sanction discrimination against LGBTQ people, by providing religious organizations special exemptions from laws barring discrimination on the basis of sexual orientation.
Anti-Transgender Legislation
Following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges which affirmed that states cannot discriminate in benefits on the basis of sexual orientation and knocked down same-sex marriage bans across the country, states governed by conservative lawmakers began sponsoring laws targeting transgender people for exclusion from public spaces such as restrooms consistent with their gender identity. These laws spilled over into school district policy, though not enshrined in legislation, that forbids students from using bathrooms and locker rooms consistent with their gender identity rather than their biological sex.
Many of the laws and school district policies are subject to litigation challenging their constitutionality.