NC Religion Bill vs. Federal RFRA — How Similar Are They?

A recent piece for the Civitas Institute compares and contrasts the federal Religious Freedom Restoration Act and its proposed NC counterpart:

[T]here are three key differences between the federal RFRA and several state RFRA bills, including that of North Carolina, that have led to a media firestorm.

First, the North Carolina bill explicitly includes protections not just for natural persons, but also for “any individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity.” The federal RFRA law does not contain specific language including such legal associations, but rather bestows rights on “any person.” However, while the language is different, it does not create a material legal distinction between the two laws. That’s not an argument, it’s a basic principle of statutory interpretation. “Any person,” when written in a federal statute, always refers to natural persons as well as partnerships, corporations, associations, etc., unless the statute explicitly says otherwise, a fact that the US Supreme Court made clear last year in Burwell v. Hobby Lobby.

Second, the North Carolina bill (like its Indiana counterpart) applies not just when a person’s exercise of religion is actually burdened, but also when it is likely to be burdened. Again, the actual legal ramifications of this language are relatively minor. Under the federal law, even though the “likely to be burdened” language does not exist, the principle is still the same — a person can request an injunction for impending harm if he or she can prove that, without the injunction, the harm will likely occur. That’s not a characteristic of RFRA laws, that’s just a characteristic of law in general. The NC bill simply makes this clear.

Third, the North Carolina bill (again, like its Indiana counterpart), appears to allow free exercise of religion to be used as a defense in a discrimination lawsuit brought by a private party. This truly may — may — be a substantial difference between the state RFRAs and the federal law, though it is not necessarily due to a difference in legislative intent. The federal RFRA was not clear on whether it applied to suits by private parties, leading to some ambiguity. However, as Prof. Josh Blackman recently noted in National Reviewthe majority of  federal circuits have held that the federal RFRA does apply as a defense in suits brought by private parties.

Read the entire piece here.

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