Article Title

RFRAs and Reasonableness

Document Type


Publication Date

Winter 2016

Publication Citation

91 Indiana Law Journal 243 (2016)


The organized opponents of legal and social equality for gays and lesbians, particularly the foes of marriage for same-sex couples, have coalesced in recent years around the rallying cry of "religious liberty." In 2015, the conflict between LGBT rights and religious liberty intensified as legislators in seventeen states considered adopting Religious Freedom Restoration Acts (RFRAs). Most of the national attention focused on Indiana, where legislators adopted a RFRA under pressure from religious conservatives, only to later amend it under pressure from business and civic leaders over concerns that the law sent a message endorsing anti-gay discrimination.

RFRAs, which typically require strict scrutiny when a religious adherent claims that a government law or policy imposes a substantial burden on the adherent's exercise of religion, have been around for more than twenty years. But they became a battlefront in the culture wars only recently, as the came to be regarded as a form of backlash against the legal and political advancements of gays and lesbians. RFRAs became a vehicle for dissent for religious conservatives against lower court rulings that were bringing same-sex civil marriage to states (like Indiana) that had long and tenaciously resisted it. Religious conservative activists said RFRAs were necessary so that store owners, landlords, and employers who oppose legal equality for gays and lesbians could seek religious accommodations from laws that prohibit discrimination based on sexual orientation. Disagreement over whether or when such accommodations are appropriate pretty much sums up the current RFRA debate in a nutshell.