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).
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 Salesforce.com 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:
I don't care if Final 4 winds up being played in a parking lot in Tulsa, NCAA has no right to support legally codified hatred and stupidity
— Keith Olbermann (@KeithOlbermann) March 26, 2015
Former “24” star James Morrison showed us his sense of decorum:
Somebody has to say it: this Mike Pence motherfucker needs to be slapped. The nerve of some people's poorly-raised children.
— James Morrison (@JamesPMorrison) March 27, 2015
Actor Ashton Kutcher really overextended his #OUTRAGE on this tweet:
Indiana are you also going to allow Christian establishments to ban Jews from coming in? Or Vice Versa? Religious freedom??? #OUTRAGE
— ashton kutcher (@aplusk) March 27, 2015
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.