Central Conference of American Rabbis Resolution on State Religious Freedom Restoration Acts

Adopted May 6, 2015

Background[i]

The Religious Action Center of Reform Judaism, supported by a CCAR Resolution,[ii] led the effort to pass a national Religious Freedom Restoration Act (RFRA) in the 1990s. That law, passed with overwhelming and bipartisan support from members of Congress in 1993, was created to protect individuals from government laws that substantially burdened their religious beliefs in counterbalance with compelling government interests.

The Supreme Court has ruled that RFRA applies only to the federal government, not to the states.[iii]  “Since 1993, 21 states have enacted state RFRAs.”[iv]  Some state RFRAs have been adopted with language that mirrors federal RFRA, and some state RFRAs have been enacted with goals similar to the concerns that led our Reform Movement and others to advocate for federal RFRA in the 1990s. 

However, “the conversation around RFRA and who the law protects has shifted greatly after the Supreme Court’s [2013] decision in Burwell v. Hobby Lobby, which held that RFRA applied to closely held for-profit corporations in some circumstances – by defining ‘person’ to include corporations. The Reform Movement vociferously criticized the Supreme Court’s decision in Hobby Lobby, emphasizing the problems that stem from giving corporations the same religious freedom rights as individuals under RFRA.”[v]

Most recently, legislators in some states have proposed state RFRA’s that would allow businesses and individuals to claim religious exemptions to discriminate. When RFRAs are used in this fashion, they not only sanction harm to vulnerable communities but they also undermine the fundamental, bedrock American value of religious freedom.

As Jews, we know intimately the importance of religious freedom protections, which have allowed us – and many other communities of faith – to live freely according to our religious beliefs, practices and observances. Coming from our history as victims of discrimination and oppression, it is our duty to speak out and to fight for the rights and protections of all vulnerable communities when they are put at risk.

Specifically, legislators in some states have proposed state RFRAs in response to several factors including health care laws that include reproductive rights protections, the spread of marriage equality and what they perceive to be increased equal legal protections for the LGBT community.  In several instances, proposed or enacted state RFRAs have sought to preserve the purported religious liberty of businesses, as well as non-religious associations and non-profit organizations.  “These laws [and proposals] are [intended] to allow people to discriminate against the LGBT community. The original RFRA, by contrast and as described above, was crafted to ensure that people were protected from government overreach in their religious free exercise.”[vi]

While marriage equality may soon be a reality across the United States, gay, lesbian, and transgender Americans continue to lack basic civil rights protection.  No legislation at the federal level, or in the majority of states, protects LGBT Americans from discrimination in employment or housing, for example.  The CCAR, by contrast, has advocated for equal civil rights for gay men and lesbians since 1977 and recently adopted a resolution calling for the same for transgendered Americans.[vii]

Reform Rabbis have been working hard to defeat state RFRAs, particularly when the language of those RFRAs grants religious liberty to businesses.  The burden of this fight has fallen particularly on CCAR members who live in states where the legislative environment is hostile to LGBT equality.

Therefore, Be It Resolved that the Central Conference of American Rabbis:

Reaffirms its support for the federal Religious Freedom Restoration Act of 1993 under the rationale for which it was adopted, namely the protection of religious liberty.

Opposes the enactment of any state RFRA that would enable religious liberty claims to prevail in a way that would permit discrimination against protected classes and other minorities, including but not limited to the LGBT community.

Calls upon the federal government and each of the states to assert, for RFRA claims, a compelling interest to protect Americans against discrimination, based on existing law or by enacting new law, outweighing religious liberty claims.

Deplores the Supreme Court’s interpretation of federal RFRA in Hobby Lobby, which extended religious freedom rights to at least some corporations.

Supports the enactment of state RFRAs only if the following conditions exist:

That the RFRA explicitly states that neither for-profit corporations nor secular institutions and associations is protected under the law.

That the RFRA mirror federal RFRA with the exceptions stated above in A.

Renews its call for legislation at the federal level and in each state to extend the full non-discrimination provisions to LGBT Americans in areas including but not limited to employment, housing, public accommodations, and education.

Commends CCAR members who have advocated on behalf of LGBT and other Americans who might face increased discrimination as a result of proposed state RFRAs.

[i] Much of the language in the background section is taken from statements issued by the Religious Action Center of Reform Judaism in March and April, 2015, in response to initiatives in Indiana and North Carolina. 

[ii] “Free exercise of Religion and the Religious Freedom Restoration Act of 1991,” a resolution adopted by the 102^nd Annual Convention of the Central Conference of American Rabbis, June, 1991.

[iii] City of Boerne v. Flores, 1997.

[iv] National Conference of State Legislatures, ncsl.org.

[v] Religious Action Center of Reform Judaism, “FAQ and Talking Points – Religious Freedom Restoration Act (RFRA) and State RFRAs,” April, 2015.

[vi] Ibid.

[vii] CCAR Resolution on the Rights of Transgender and Gender Non-Conforming Individuals, adopted March 16, 2015.