How RFRA is Like a Taking and Two Thoughts on Establishment

by Michael Dorf
Most of my latest Verdict column considers one of the two main objections that was lodged against the pre-amended Indiana RFRA and the failed version of the Arkansas RFRA bill that drew so much criticism last week. They were criticized on the ground that they would have applied in private litigation. I explain why a simple-minded version of this criticism misses the mark but why there are also more subtle versions that have more to recommend them. Here I want to focus on the second of the more subtle versions.

The core of the argument I describe in the column is that under a RFRA (or under a state constitutional provision protecting free exercise that is construed to grant protection against laws of general application, not just laws targeting religion), people whose religious exercise is substantially burdened should be accommodated but only when doing so does not impose the cost of the accommodation on particular third parties. Under this principle, a RFRA would just about never apply in private litigation because private litigation necessarily singles out particular individuals--the parties resisting the claims for religious exceptions--as those who must bear the cost of the accommodation.

Let me illustrate with a couple of examples that are far afield from anti-discrimination law. Suppose that a state has a RFRA and also has a general law reserving the use of certain state highways for motor vehicles. The law specifically forbids pedestrians, people on horseback, horse-drawn carriages, and bicycles. Now suppose that an Amish citizen of the state, whom I'll call Yoder, rides his bicycle on one of these state highways. A state trooper gives Yoder a ticket and Yoder goes to traffic court, where, if convicted, he would face a fine of $100. Yoder pleads the state RFRA in his defense. Does he prevail?

Maybe. Yoder would first have to show that keeping him off the state highway substantially burdens the exercise of his religion. Let's suppose he can get over that hurdle--perhaps because this state highway is the only road between his onion farm and the market where he sells the onions that he transports on the bicycle; keeping his bicycle off the highway would make him choose between violating his religion (by driving a car) and giving up his livelihood. The burden claim here is at least as strong as in Hobby Lobby.

The government would nonetheless be able to overcome Yoder's RFRA claim if the bicycle prohibition is narrowly tailored to advance a compelling state interest. Highway safety is undoubtedly a compelling interest but whether the law is narrowly tailored would depend on a number of factual issues. For my purposes, let's suppose that the law is not considered narrowly tailored because it turns out that the presence of Amish bicyclists on the state highways does not increase the aggregate risk on those highways. Or at least the government is unable to show otherwise, as is its burden under the state RFRA. Accordingly, the state court finds that Yoder does not have to pay the fine.

Now suppose that another Amish onion farmer, whom I'll call Miller, also rides his bicycle on the state highway. Miller is a safe bicyclist but he has the bad luck to hit a pothole that causes his onions to spill into the road, in turn causing a passing car to crash into the median. The driver of the car, whom I'll call Driver, sustains injuries and his car is damaged. Driver sues Miller in tort and argues that Miller's presence on the state highway on a bicycle is negligence per se. Let's suppose that a prior precedent involving a non-religious bicyclist holds that violating the no-bicycles-on-the-highway law is negligence per se in a tort suit. Can Miller defend based on RFRA?

My intuition here is that Miller has a much weaker case than Yoder. Admittedly, part of the basis for that intuition is that Miller actually caused injury, whereas Yoder did not, but I don't think that's the whole of it. In addition, allowing Miller to invoke RFRA means imposing the cost of his exception entirely on one innocent third party: Driver.

And that seems unfair in much the way that it seems unfair for the government to impose the cost of some socially beneficial project--building a needed highway or sewage treatment plant, say--on the people who happen to own the property that the government needs for the projects. If this is a collective good, then the government should pursue it by raising revenue from the general public, not by uncompensated exactions from the particular people who happen to have the bad luck to own the particular parcels of property that the government wants to use.

To be clear, I'm not saying that the Takings analogy is perfect. If it were, we might want to say that in a case like Driver's, Miller can implead the government, so that Driver would get his compensation from the general public. I don't think I would go that far. However, I do think that the anti-singling-out logic of Takings law underwrites the broader view that particular individuals should not bear the burden of religious accommodations.

As long as I'm analogizing to other constitutional provisions, I'd also add that imposing the cost of affording religious accommodations on particular individuals who are not part of the accommodated religious group implicates anti-Establishment values. I don't go so far as Justice Stevens, who thought that RFRA as a whole violates the Establishment Clause, but I do think that it is especially problematic for the state to make particular individuals bear the whole burden of accommodating other people's religious opt-outs, because that begins to look like a kind of coercion of non-believers into following, or at least facilitating, the practices of believers. Indeed, understanding the issue as one of coercion suggests there is a Free Exercise issue here as well: A RFRA applied in private litigation can undermine the freedom to choose non-religion or a different religion of the party against whom the RFRA claim is asserted.

Thinking about how the burden of providing accommodations is distributed also may provide some insight into the politics of RFRA. The original impetus for RFRA was bipartisan but in the last few years it has split ideologically, with conservatives supporting RFRA(s) and liberals wary. Partly that's a result of the particular contexts in which the claims arise: Liberals value contraceptive access (as in Hobby Lobby) and anti-discrimination protection for LGBT persons more highly than conservatives do.

But in addition, as others have noted, although the federal RFRA was inspired by a case involving a minority religion, RFRAs lately been used by people who adhere to conservative branches of mainstream religions. As the number of people who seek eligibility for a RFRA exemption increases--or as it increases in particular socially conservative communities--the burden of providing accommodations becomes more concentrated. Thus, even in a case where RFRA is being applied in litigation with the state, the cost of the accommodation now falls on a non-believing subset of the population who are either themselves a minority or, if a majority, a bare one--at least in particular communities. Accordingly, instead of virtually the whole community absorbing the marginally small cost of providing an accommodation to a handful of people with idiosyncratic religious beliefs, in the new contexts a RFRA begins to look like it enables one large faction of the population impose its religious beliefs on the rest of the population. And so liberals, who hold anti-Establishment values much more strongly than conservatives do, have another reason to be wary of RFRAs.