No, the Indiana Religious Freedom Act Does Not Discriminate Against Gays

No, the Indiana Religious Freedom Act Does Not Discriminate Against Gays

On Thursday, Indiana governor Mike Pence signed into law the Religious Freedom Restoration Act, and from the reaction of the media and various celebrities you would’ve thought that anti-gay Jim Crow laws had just been enacted in the Hoosier state.

On Saturday an estimated 3000 people protested in Indianapolis against the RFRA, waving rainbow flags and chanting “No hate in our state! Whose state? Our state!” CNN headlines referenced the “Indiana law that allows biz to reject gays.” A hysterical guest on Al Sharpton’s little-watched MSNBC program likened Mike Pence to Jim Crow and George Wallace (never mind that Wallace was a Democrat).

Protests in Indianapolis.

Businesses with corporate connections to Indiana predictably began shaking in their boots. Angie’s List halted their building project in Indianapolis, its chief executive Bill Oesterle stating that “Angie’s List is open to all and discriminates against none and we are hugely disappointed in what this bill represents.” San Francisco-based Inc. has cancelled all programs requiring travel to Indiana. And the NCAA, faced with next week’s Final Four basketball games already scheduled in Indianapolis, designated themselves as watchdogs at the event, “. . . to assure student-athletes competing in, and visitors attending, next week’s Men’s Final Four in Indianapolis are not impacted negatively by this bill,” in the words of NCAA President Mark Emmert.

And then there are the celebrities.

Sportscaster Keith Olbermann, who found a home at late-night ESPN2 and TSN2 after several prominent firings, tweeted this:

Former “24” star James Morrison showed us his sense of decorum:

Actor Ashton Kutcher really overextended his #OUTRAGE on this tweet:

And then there’s Miley Cyrus’s incoherent rant at Instagram — whatever happened to sweet Hannah Montana?

“You’re an a**hole @govpenceIN ✌️-1 cc: the only place that has more idiots that Instagram is in politics @braisoncwukong thank you for standing up for what is right! We need more strong heterosexual men fighting for equality in both men and women! Why are the macho afraid to love muchoooo?!?”

The bottom line, however, is this:  the Indiana Religious Freedom Restoration Act is not a license to discriminate against gay people.

Stanford law professor Michael McConnell, a former appellate court judge, wrote, “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”

So what exactly is the RFRA, and what does it do?

The first RFRA was a federal law that was signed into law in 1993 by President Bill Clinton. Basically the law requires a balancing test for courts to apply in religious freedom cases, and allows a person’s religious liberties to be “substantially burdened” only if the law furthers a compelling governmental interest. However, that governmental interest must use the “least restrictive means” possible. In the 23 years since the passage of the federal RFRA, some courts have ruled in favor of religious exemptions, while others have not.

Indiana, along with 19 other states found themselves in need of enacting their own versions of RFRA (including Illinois, whose then-state senator Barack Obama supported its RFRA in 1998), because in a 1997 case (City of Boerne v. Flores) the Supreme Court found that the law did not apply to state or local laws. The most recent cases of wedding photographers and florists being sued by gay couples for refusing their services on religious grounds have spurred on the recent spate of religious freedom laws in various states.

So what is the difference between the federal RFRA law and Indiana’s new law? Not much. Here are the texts of each law for comparison; first the federal law:

Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person —

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Here’s the Indiana law:

A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

So, no, Indiana’s new Religious Freedom Restoration Act will not give rise to rampant discrimination against gay people, although the website Think Progress already breathlessly announced that they have found one — one — restaurant that refused to serve gay customers in Indianapolis (despite their link to the bigoted restaurant owner’s quote going nowhere). In fact, Governor Pence is pushing for more clarification to guarantee that the new law does not promote discrimination against gay citizens.

But let’s also add a little common sense as is found in the free market.

Private business exists to make a profit, and a business cannot do so by discriminating against current and prospective customers; this is particularly true in the case of the small business owner for whom each day might bring gains or losses. Those small-time florists or wedding photographers who have refused to participate in gay weddings risk their businesses only through very deep moral convictions, and some have even lost their businesses simply by saying ‘no.’

Not all Christians are out to discriminate against gays, either.

My eldest daughter has a small lifestyle photography business in the Pacific Northwest. She is a practicing Christian, and while she doesn’t do wedding photography, she told me she would have no problem taking photographs of gay couples. She told me of a local woman photographer, in fact, who specializes in gay wedding photography. Where there is a need, the free market will fill it with goods and services. Isn’t that a much better solution than bitterness, hatred, and litigation?

Finally, here are some remarks made about religious liberty made by a famous American.

“The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our Founders cared a lot about religion. And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. They knew that religion helps to give our people the character without which a democracy cannot survive. They knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.”

Those words were spoken at the signing of the Religious Freedom Restoration Act. The year? 1993. The famous American? None other than Democratic President Bill Clinton.

Written by

Kim is a pint-sized patriot who packs some big contradictions. She is a Baby Boomer who never became a hippie, an active Republican who first registered as a Democrat (okay, it was to help a sorority sister's father in his run for sheriff), and a devout Lutheran who practices yoga. Growing up in small-town Indiana, now living in the Kansas City metro, Kim is a conservative Midwestern gal whose heart is also in the Seattle area, where her eldest daughter, son-in-law, and grandson live. Kim is a working speech pathologist who left school system employment behind to subcontract to an agency, and has never looked back. She describes her conservatism as falling in the mold of Russell Kirk's Ten Conservative Principles. Don't know what they are? Google them!

  • If photographers and bakers who are Christians can be forced – by law – to provide services to gays and lesbians seeking marriage, why can’t Hollywood be forced – by law – to produce pro-Christian movies and shows? Or force public universities to provide services to Christian organizations (a number of universities are going in the opposite direction and trying to ban them)? Or force the media to cover Christian events in an even-handed manner?

    Let’s see how tolerant and inclusive our self-anointed moral and intellectual betters really are.

    • Kim Quade says:

      Good point. It seems that in academia, the media, and the popular culture, the rights extend only in one direction.

    • Lance says:

      Actually, they aren’t “forcing” gay marriage, they are allowing marriage for all. In Hollywood, you can make whatever movie you want.

  • Wfjag says:

    Should a devout Muslim have to cater a Bar Mitzvah, or serve pulled pork and beer at a tailgate party?

    • Kim Quade says:

      Hmm, that’s a good point too, but beer and pulled pork sound good to me! 🙂

    • Lance says:

      You are way off on your analogy. The Muslim wouldn’t have to offer products they didn’t normally offer just because they were requested. But, they couldn’t offer, say, beans on the menu, then refuse to sell them a jewish person.

  • Skeeter Sanders says:

    For anyone interested on what the 1993 federal Religious Freedom Restoration Act says:

  • Skeeter Sanders says:

    By the way, there is a much deeper issue at play here that many people don’t realize. What is to prevent businesses — presumably owned by conservative Christians — from imposing sectarian discrimination against non-Christian religious minorities? What if the conservative Christian owner of a business refuses service to a Muslim or a Jew? There’s a real danger that the Indiana RFRA could plant the seeds of sectarian conflict.

    • Jodi says:

      She already addressed that scenario, SS: The Free Market. I certainly wouldn’t spend my money at a biz that practiced discrimination, would you? Without customers, the biz is sunk. That’d be pretty damned stupid, eh?

    • Kim Quade says:

      Please reread my post. As the Stanford law professor stated the bill does not promote discrimination.
      It does provide for balance. For example, if a gay couple in Indiana were rejected from the services of a baker who felt that participating in their nuptials would go against his religious beliefs (note that this is not the same as selling them cupcakes in his store), and that was the only cake baker in their locality (very unlikely; I grew up in Indiana, and it’s thick with communities), then the state could step in and require the baker to bake the cake. Otherwise, if they lived in, say Indianapolis or South Bend, they would have access to many bakers who would probably serve them. They would not be denied access to a service
      Another point: why do you presume that businesses that might refuse goods or services are owned by conservative Christians? Why did you not ask about a Muslim-owned Middle Eastern deli that would refuse service to the young Jewish man wearing a kippah?
      Here is a great article on how RFRA has helped 10 Americans who were decidedly not Christian.

    • What is to prevent businesses — presumably owned by conservative Christians — from imposing sectarian discrimination against non-Christian religious minorities?

      Under your logic a baker could be compelled to bake a Hitler cake for a Nazi even if they found Nazism repulsive (Nazis are definitely a minority in the USA). It would certainly happen if we adopt your extremely wide definition of discrimination. And don’t say it won’t happen, since it already has:

      There are other scenarios that perhaps you have not considered. Could a Muslim who is a butcher be compelled to prepare pork if a customer wanted it? Could a Hollywood studio be compelled to provide their facilities to someone who wants to make a pro-Christian movie? Could a publishing house which publishes only left-of-center books be compelled to publish a defense of Ronald Reagan? Could private schools and universities be compelled to sponsor Christian organizations – including those which oppose homosexuality?

      There is indeed a larger issue. Unfortunately, you seem to have have missed it.

  • jackson says:

    lol at taking a stand to not do business in Indiana based on a belief system about a law that allows people to not do business based on beliefs…. that’s irony

  • BikerDad says:

    Could somebody please explain exactly what this “compelling government interest” is that justifies ignoring the First Amendment? What exactly is the “compelling government interest” (“CGI”) in a wedding cake for some deluded homos? How do photographs of a lesbian wedding implicate the survival of the Republic?

  • D L Koch says:

    Why couldn’t a Muslim caterer be forced to provide a pork BBQ and beer to a wedding?

    • Lance says:

      Because the law isn’t requiring the business (in this case, the Muslim caterer) to serve foods it doesn’t normally serve. It’s arguments like yours that cause the law to be misinterpreted.

  • adult says:

    The authorities not too long ago confirmed that their
    investigation could be centered on Amaya Inc’s CEO and CFO.

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