By Mike Appleton, Weekend Contributor

“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”

-Munn v. Illinois, 94 U.S. 113, 126 (1876)

The events in Indiana and Arkansas during the past week contain at least two lessons. The first is that hypocrisy is like teeth; most of us have some and exposure usually produces a nasty bite. Second, interminable debates on the topic of comparative victimology are, well, interminable. Neither lesson is useful. So perhaps it is time to take a deep breath and engage in a bit of dispassionate reflection on the scope and application of the Religious Freedom Restoration Act.

Let us begin with the oft repeated claim that a person operating a business ought to have the right to refuse service to anyone at any time for any reason (or no reason at all). Whatever merits this claim may have as a philosophical position, it has never found approval as a principle of law. The reason is that historically the common law has recognized that there are categories of commercial enterprise of sufficient importance to the general welfare to mandate their availability to all members of the public on equal terms.Thus, in an early English case, the owner of the Bell Inn in Chepstow, Wales was indicted for refusing to provide a room for a late-arriving traveler. There was no suggestion of improper conduct or an inability to pay for the accommodations, and the court duly rendered a guilty verdict, finding that the innkeeper had violated a duty owed to the public. “The innkeeper is not to select his guests. He has no right to say to one, you shall come into my inn, and to another you shall not, as everyone coming and conducting himself in a proper manner has a right to be received … .” Rex v. Ivens, 7 Car. & P. 213, 173 Eng. Rep. 94 (1835).

The common law duty imposed upon operators of public houses also extended to other commercial enterprises deemed clothed with a public interest, most especially common carriers. As the court explained in the case of Messenger v. Pennsylvania R.R., 37 N.J. 531 (1874), “A service for the public necessarily implies equal treatment in its performance, when the right to the service is common. Because the institution, so to speak, is public, every member of the community stands on an equality as to the right to its benefit, and therefore, the carrier cannot discriminate between individuals for whom he will render the service.” 37 N.J. at 534. The point is that although I may generally set the terms and conditions under which I will offer my products or services to the public, that discretion is not absolute.

The debate over the Indiana and Arkansas RFRA legislation involves the impact of the Free Exercise Clause on the traditional notion that a business open to the general public must offer its goods and services to all legitimate customers without regard to considerations external to the transactions themselves. But the fact that the debate has become necessary at all is largely a consequence of sloppy jurisprudence and sloppy lawmaking.

In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court upheld a determination that two individuals fired for using peyote were ineligible for unemployment benefits, despite the fact that their drug use was for religious worship purposes. “We have never held,” the Court noted, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” 494 U.S. at 878-879.

Although the Smith decision was thoughtful and sensible, it discarded the “compelling interest” test in the process, reasoning that “adopting such a system would be courting anarchy… . [W]e cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.” 494 U.S. at 888.

The decision in Smith became the catalyst for the adoption of the federal RFRA statute in 1993. It was obviously considered a good idea at the time, uniting both liberals and conservatives. It passed the House in a unanimous voice vote and the Senate by 97-3. The purpose of the statute was to restore the “compelling interest” test by requiring that no federal law may substantially burden the exercise of religion unless it is in “furtherance of a compelling government interest” and achieves the result in the “least restrictive” manner. 42 U.S.C. Section 2000bb, et seq.

Several years later the Court ruled that RFRA was unconstitutional as applied to state action. City of Boerne v. Flores, 521 U.S. 507 (1997). In response a number of states adopted their own RFRA laws patterned on the federal model. Nineteen states had enacted such laws prior to Indiana’s version.

The latest controversy arose because the Indiana and Arkansas proposals differed from the federal and state versions of RFRA in important respects, differences which can be traced in turn to two other court decisions. The first is Elane Photography v. Willock, 284 P.3d 428 (N.M. App. 2012), in which Christian owners of a photography studio were found to have violated the public accommodations provisions of New Mexico’s Human Rights Act by refusing to photograph a commitment ceremony for a lesbian couple. The Court rejected a proffered defense under the state’s RFRA statute, holding that the complaining party was not a “government agency” and that the RFRA statute did not apply to litigation between private parties.

Then, the Court in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) held for the first time that for-profit corporations are entitled to assert free exercise rights and invoke the protections of RFRA against proposed government actions. In her dissent, Justice Ginsburg observed, “The Court, I fear, has ventured into a minefield . . . by its immoderate reading of RFRA.” 134 S.Ct. at 2805. She was correct, but the first person to step on a mine was Indiana governor Mike Pence.

Religious conservatives sensed that Hobby Lobby created a new opportunity to contest the rapid acceptance of gay marriage. This could be done by adopting a version of RFRA that applies to private as well as government action and that permits a business owner to raise an RFRA defense in a case in which a government unit is not a party. And that’s what Indiana (and Arkansas) did.  That Gov. Pence understood the nuances in the new RFRA legislation is clear for several reasons. For one thing, he can read. In addition, proponents of the bill made no secret of their intentions. On the day the bill was signed, Eric Miller of Advance America hailed the “Victory At The State House” and the relief the law would now provide for “Christian bakers, florists and photographers.” http://www.advanceamerica.com/blog/?p=1849 . And the governor arranged for a private signing ceremony, excluding even members of the press.

When the bill was modified later in the week, those who had worked for passage of the initial version felt betrayed, and with good reason. Mr. Miller issued a press release denouncing the amendment as a “hammer to destroy religious freedom for Hoosiers around the state … .” Gay marriage opponents had been open and honest about their intentions from the beginning, and they understood that the addition of the amending language essentially defeats what the law attempted to accomplish.

What has been forgotten amid the charges and counter-charges of discrimination, however, is that the original federal RFRA was not drafted to deal with private discrimination claims. The Smith decision concerned government action that essentially criminalized participation in a religious sacrament, the very heart and soul of religious exercise. RFRA sought to erect barriers to that sort of government action. Unfortunately, the slippery slope created by the Court in Hobby Lobby sent religious conservatives rushing to dust off their toboggans.

This experience has taught Gov. Pence that stealth legislation is dangerous. It has also taught him never to ask Asa Hutchinson to be his partner in a tag-team wrestling match. What it has not done is resolve the question of religious objections to the non-discriminatory provision of goods and services to the general public. An analysis of that issue must be left for another post.

In the meantime, we need to remind ourselves that this nation is the most religiously diverse country in the world. That means that there is virtually no lawful activity which does not offend the religious sensibilities of someone somewhere. If our commitment to religious pluralism is to have meaning, we cannot permit the creation of a religiously balkanized society in which a product or service may lawfully be denied because the vendor has personal moral objections to the views or status of a prospective customer. When we examine how to construct a proper balance between competing claims of religious liberty and respect for human dignity, we would do well to commence by recalling the first principle of toleration learned at the feet of our parents many years ago: Mind your own business.

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