From RFRA To SB8: Individual Lawsuits To Circumvent Rights

There's a connection between an infamous anti-LGBTQ law and Texas's new anti-abortion law.

When I first heard about the new Texas law banning abortion (SB8), I think I reacted with the same horror as many others. They were encouraging bounties, allowing anyone to file a lawsuit and claim $10,000 from any individual who may have helped a pregnant person get an abortion. This law was connivingly designed to frustrate judicial review, because with no state official charged with enforcing it, there’s no one to sue to challenge its implementation. But it’s also just plain evil to sic citizens upon each other to punish them for accessing a procedure that is a safe, constitutionally protected form of health care.

And the more I thought about what made SB8 so insidious, the more something in the back of my brain kept twitching. For as novel as these anti-abortion bounties are in American law, there was still something familiar about this approach. And it finally hit me: There is a very striking similarity between SB8 and what was problematic about Indiana’s 2015 anti-LGBTQ “religious freedom” law.

Now, my goal in this post is not to draw a straight line from Indiana’s attempt to allow anti-LGBTQ discrimination to Texas’s attempt to outright ban abortion. But I do think there’s something compelling about what they have in common that I want to draw out by walking you through the legal weeds a bit.

Hopefully, identifying this theme will help us anticipate and block future attempts to impose religious views at the cost of others’ rights.

Indiana’s 2015 RFRA

2015 was a long time ago, so it’s easy to forget how Indiana’s Religious Freedom Restoration Act (RFRA) captured national attention in a way not unlike the way Texas has here in 2021. It certainly didn’t help that then-Gov. Mike Pence signed RFRA into law just as national media was convening on Indianapolis for the March Madness Final Four tournament. But the national attention was also warranted because of how dangerously discriminatory the law was until it was quickly amended.

“RFRA” describes a set of laws that exist at the federal level and in many states. It’s designed to protect individuals from the government imposing on their religious beliefs. So if the government tried to — for example — claim land that Native Americans considered sacred and part of their religious ceremonies, RFRA would guarantee that those tribes would be protected when they push back. All in all, it’s a pretty noncontroversial law that, in practice, still respected the premise that one person’s religious freedom is secure but cannot reach the point where it encroaches on another person’s rights.

That changed in 2014, when the Supreme Court ruled that the owners of craft chain Hobby Lobby could impose their religious values on their employees by denying them access to contraception in their health care plans. (Controlling people’s reproductive freedom was a theme then too!) Suddenly, the door had been propped open to let one person’s religious beliefs supersede another person’s rights. And that’s exactly what Indiana attempted in its 2015 RFRA, which a few other states attempted to copycat but backed away from after the national backlash.

Indiana’s RFRA contained much of the same language as the federal and other state RFRAs, but it had a key difference. With one notable exception I’ll get back to, those other RFRAs all applied specifically to disputes between the government and a person or entity. Indiana’s law, however, guaranteed that a person or organization could claim that their exercise of religion had been substantially burdened as a defense in a legal proceeding “regardless of whether the state or any other governmental entity is a party to the proceeding.”

In other words, Indiana’s RFRA was no longer just about protection religious practitioners from the government. It protected them from anything or anybody — and against anything or anybody. So let’s say there was a pizza shop in Indianapolis — a city that protects against discrimination on the basis of sexual orientation — that refused to serve a same-sex couple. If the couple sued, the pizza shop owners could cite RFRA to justify their discrimination.

Just to spell it out: That would be a lawsuit between two personal parties over a law being broken. But according to RFRA as it was passed, the pizza shop could claim that Indianapolis’s nondiscrimination law burdened its religion as a defense against the same-sex couple. The city’s law is supposed to protect the couple, but the state’s law would win out and instead protect the business refusing to serve them.

That’s why at the time we coined the phrase “license to discriminate” to describe laws like this. The state was basically making clear that if someone discriminated for religious reasons, the law would have their backs.

Just to hammer this home, it’s worth rewatching Pence’s interview on ABC’s This Week when he repeatedly refused George Stephanopoulos’s blunt yes-or-no question about whether the RFRA allows discrimination against LGBTQ people — literally seven times.

Pence’s dodging there tells a pretty compelling story on its own, but there was ample evidence from all of the other conservatives who supported Indiana’s RFRA that allowing discrimination through interpersonal lawsuits was exactly what they hoped to accomplish.

The Indiana RFRA “Fix”

The blowback against Indiana was massive. Salesforce and Angie’s List threatened to halt their expansions in the state. The NCAA and Apple’s Tim Cook spoke out against it, among others. It was not a proud time to be a Hoosier as the nation turned its eyes on the legislature’s clearly discriminatory intent.

Facing the massive loss of business in the state, Indiana lawmakers ultimately caved and agreed that they would fix the law. And for inspiration, they turned to the one other state that had also passed a RFRA that allowed for interpersonal suits — the aforementioned notable exception, Texas.

In its 1999 RFRA, Texas had similarly allowed for religious freedom to be cited in legal disputes that did not involve the government. There was massive pushback at the time, however, which prevented it from looking like Indiana’s. The version of Texas’s RFRA that ultimately passed contained exemptions that prevented it from applying to land use laws, prisons, and notably, human rights laws.

The fix to Indiana’s RFRA followed this model, making it clear that the law could not be used to justify discrimination or otherwise defend against a claim of discrimination — except by churches and other nonprofit religious organizations. This ensured that RFRA would not effectively gut the LGBTQ protections that exist throughout the state at the local level. To this day, however, no state-wide law exists in Indiana to protect against discrimination against LGBTQ people.

Texas And Beyond

Because everything unfolded so quickly in Indiana, there was no opportunity to test the original RFRA in court. Still, it was a law administered by the state, and like other legal challenges involving RFRAs, there was nothing peculiar about how courts would review the law.

Texas’s SB8 is a different story. Its prohibition on abortion is clearly unconstitutional, but its use of individual personal lawsuits to accomplish that prohibition is novel. There isn’t a clear remedy for how the courts would prevent its enforcement — or at least that’s the excuse the Supreme Court used to leave it on the books for now. And that’s exactly the outcome its proponents hoped for.

I think courts will ultimately have to wrestle with the constitutionality of the personal-lawsuit construction itself. It seems all too obvious that if they don’t, we’ll see more laws that follow the exact same model to enforce any number of other cultural values. Soon we might see laws allowing people to sue over aiding and abetting same-sex marriages, gender transitions, interracial marriages, voting by mail, etc.

If you think about it, such a legal apparatus is literally the dream marriage of fiscal and cultural conservatives. Fiscal conservatives want smaller government interference so that the rich can get richer and the poor can suffer their lot. Cultural conservatives want to force their restrictive values onto others. Laws like SB8 let the values be imposed without adding to the size or force of the government. Conservatives have tasted success with this model, and there’s every reason to believe they will scheme new ways they can take advantage of it.

But we can be vigilant. We know what to look for so that we can work hard to oppose duplicate bills when they appear. We can also continue efforts to defang RFRAs, such as the federal Do No Harm Act, a bill that would prevent the kind of religious discrimination the Supreme Court greenlit in Hobby Lobby.

We are a nation of laws, and we cannot have a system in which some people are above the law simply because they’re willing to go to court. We know what the motive is with SB8, and we can and must stop it from propagating elsewhere.

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