Co-authored by Rajdeep Singh, Senior Director of Law and Policy at the Sikh Coalition.
While business leaders and civil rights groups are right to criticize Indiana's government for allegedly targeting same-sex couples in the state for discrimination under the banner of the Religious Freedom Restoration Act (RFRA), we should not throw RFRA out with the bathwater.
RFRA, where it is law, protects the rights of all Americans to practice their religion, but it can be a lifeline for religious minorities. This includes Muslims, Jews, Sikhs and Native Americans, among others. Without RFRA, religious minorities have little recourse when subjected to the quintessential government-imposed false choice: Do you want to work here or practice your religion? Do you want to get arrested or do you want to carry your article of faith? Do you want to get an education or do you want to maintain unshorn religious hair?
RFRA is not always a trump card in these cases, but it is definitely a powerful tool in the civil rights arsenal. Therefore, while Indiana lawmakers (and others) appear to be misusing the law in service of homophobia, the solution is not to repeal it. Rather, the law should be amended to clarify that it cannot be used to discriminate against others on any basis, including sexual orientation.
At its core, RFRA was always intended to protect religious minorities from discrimination, sometimes from the religious majority. In 1993, President Clinton signed a federal version of RFRA into law. This legislation was enacted in response to a controversial 1990 U.S. Supreme Court decision that gutted decades of jurisprudence that protected religious observers -- especially minorities -- from discrimination.
According to the Supreme Court, the U.S. Constitution's religious freedom protections are more likely to kick in when lawmakers pass laws that intentionally discriminate against the free exercise of religion. The problem is that most lawmakers are sophisticated enough to appear fair-minded, even if they secretly harbor dislike towards a specific group. Therefore, they can bypass a charge of intentional discrimination by passing neutral laws -- rules or policies that apply to everyone on paper but which have the "unintended" effect of restricting the civil rights of minorities in practice.
For instance, a federal law enforcement agency may create a grooming rule that requires all officers to be clean shaven with no exceptions. This policy, while neutral and evenly applied to all, has a discriminatory impact on religious groups who maintain religious beards, including observant Jews, Muslims and Sikhs.
RFRA allows religious observers to vindicate their rights when faced with these more subtle forms of discrimination. There is also a counterpart to RFRA called RLUIPA, or the Religious Land Use and Institutionalized Persons Act, which invokes the same legal standards to protect the religious rights of prisoners, also a vulnerable population, and to protect the right of religious communities to build houses of worship.
Since their inception, these laws have protected the religious rights of many marginalized Americans. This includes the right of an Arkansas Muslim prisoner to maintain a ½ inch religious beard, the right of a Jewish rabbi to serve in the U.S. Army, the right of an Arizona Sikh correctional officer to keep his job and his religious beard, the right of a Sikh man to carry a kirpan (an article of faith resembling a small knife) without facing criminal prosecution, and the right of a Texas Native American student to wear his hair in traditional braids at a public school.
RFRA also helped prevent the passage of a discriminatory bill in 2009 that targeted visibly religious minorities in Oklahoma. This bill would have banned all headcoverings in state driver's license photographs, without exception. Had it not been for the backstop provided by RFRA, observant Jews, Muslims and Sikhs -- all of whom wear religious headcoverings in accordance with their faith -- may have faced an impossible choice between their religion and their ability to receive a driver's license, a document that we take for granted but which allows us to travel, make purchases, apply for jobs, receive loans and fully participate and function in society.
Whether Indiana lawmakers like it or not, RFRA will protect minorities in the state from similarly ridiculous and discriminatory proposals. The new law may even make it possible for observant members of these communities to serve as uniformed law enforcement officers in Indiana. Indeed, the federal version of RFRA is the anchor of a discrimination lawsuit that was filed against the U.S. Army late last year by a Sikh student who was denied an opportunity to join the ROTC program because of his religious turban, unshorn hair and beard.
The U.S. Constitution guarantees religious institutions and people the right to disapprove of same sex marriage. At the same time, it is nonsensical and contrary to the spirit of RFRA for Indiana or Arkansas or any other state to use an anti-discrimination law to infringe upon the civil or constitutional rights of others. Our governments have an obligation to ensure that all people enjoy equal access to public accommodations, equal employment opportunity, and equal protection of the laws, regardless of what they believe or who they love.