RFRA Background

In 1993, the Religious Freedom Restoration Act of 1993 was introduced in the House of Representatives by now-Senator Chuck Schumer (D-NY). It passed the Democrat-controlled House virtually unanimously and passed the Senate by a vote of 97-3. Even Ted Kennedy, Nancy Pelosi, and Harry Reid voted for RFRA. This nearly unanimous bipartisan bill was then signed into law by President Clinton who said, “I have tried to be faithful to that tradition that we have of the First Amendment.”  This bill restored a standard of strict scrutiny to the courts when deliberating over cases involving the tension between the State’s “compelling interest” and individuals’ First Amendment Free Exercise rights. In 1997, the Supreme Court upheld the law, but encouraged states to pass their own version of RFRA to make it applicable in cases involving state governments. As of last month, 17 states had done just that, without much fanfare. However, as documented by CCV Action, last month, when Arizona tried to clarify their existing RFRA, same-sex marriage activists and their allies in the media mounted a campaign of mass hysteria. In the chaos that ensued, Governor Jan Brewer (R-AZ) vetoed AZ’s bill, and Ohio state representatives withdrew an Ohio RFRA that already had bi-partisan support and 50 co-sponsors.

As Winston Churchill so aptly quipped, “A lie gets halfway around the world before the truth has a chance to get its [clothes] on.”

In the hysteria and propaganda that ensued, many politicians and members of the media alike ignored history and never bothered to read the RFRA bills in question. U.S. Senator John McCain of AZ joined the fray in condemning the AZ RFRA, only to have his staff remind him that he voted for the federal version in 1993. When confronted over this contradiction, McCain was understandably speechless. Likewise, media outlets largely ignored the fact that RFRA’s purpose is to strengthen conscience protections and civil liberties for all Americans and the documented fact that none of the 18 state or federal RFRA’s had ever once been used to discriminate.

Also ignored was an important letter co-signed by law professors from eleven of the nation’s finest law schools. Law professors from institutions like Harvard, Stanford, Notre Dame, Virginia, and six other revered institutions sent a letter to Gov. Brewer so that she would have “accurate information” about RFRA bills. These law professors, some of who were self-identified liberals and supporters of same-sex marriage, felt an urgent need to warn Gov. Brewer that the religious freedom bill was being “egregiously misrepresented” by its critics with “deeply misleading” arguments.