April 1, 2015 Leave a comment
Indiana’s controversial Religious Freedom Act has been getting enormous press coverage the past few days. The act, signed into law this week by Republican Gov. Mike Pence, allows businesses in Indiana to discriminate against gays and others they object to on religious grounds.
The blowback has been swift and growing. The state now stands to lose millions of dollars with organizations threatening to cancel conventions and pull major sporting events. Some major corporations have said they will no longer invest in the State. It is very reminiscent of events last year when Jan Brewer was forced to veto similar legislation in Arizona.
Gov. Pence has argued that Indiana’s law is no different from that passed in 19 other states that are all based on a federal law signed by President Clinton in 1993. And many corporate media outlets have accepted his statement.
But Pence is not speaking the truth.
The Federal Religious Freedom Restoration Act signed in 1993 was designed to shield minority religions from government interference. Specifically, the law was crafted in response to a specific legal case (Employment Division v. Smith) that dealt with “whether two Native American workers could get unemployment insurance after they had been fired from their jobs for taking peyote in a religious ritual.” [See here for full details.]
In 1997 a portion of this act was overturned by the U.S. Supreme Court, which ruled that the Federal law was not binding on the operations of State governments. The Act was amended in 2003 to reflect this. Subsequently 19 States passes their own versions of the RFRA to entrench the federal law’s provisions within their own state laws.
While Gov. Pence may pretend that the Indiana law is no different than the laws passed in these other states, the American Civil Liberties Union of Indiana states that Indiana’s law is “virtually without precedent.”
It is important to note that the Federal law (as well as the laws of the other states cited) applies to individual persons and groups asserting their free exercise of religion in interacting with the government, The Indiana law is much more broadly written, allowing
for-profit businesses, employees and individuals—basically anyone—to assert a legal claim or defense of free exercise of religion in a legal proceeding, regardless of whether the government is a party to the proceeding. (emphasis added)
Garrett Epp summarizes the key differences to the Indiana law as follows in an article this week for The Atlantic:
[First,] the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. …
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.
He explains that a major impetus for the new wave of “religious freedom” legislation has come as a result of a recent New Mexico court case in which a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding on religious grounds.
The photography studio claimed that New Mexico’s RFRA protected it from being sued for discrimination. The state’s Supreme Court, however, ruled that the state’s RFRA did not protect the defendant because the government was not a party to the suit.
The Indiana law ensures that businesses will be protected from similar discrimination suits by extending the protection beyond the limits of governmental agencies to include individuals and for-profit corporations.
Does this new law allow individuals and businesses to discriminate against whomever they wish at will? No. As Paul Waldman explains in an article this week in The Washington Post,
Indiana law on discrimination creates certain protected classes. You can’t discriminate against someone because of their race, their religion, their gender, and so on. But sexual orientation isn’t on that list … .
Many other states have language in their statutes that prohibits discrimination on the basis of race, religion, gender, and sexual orientation. Indiana does not. When the bill was before the state legislature,
Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate [on sexual orientation]; they voted that amendment down.
And that is what gives this legislation signed into law this week by Rep. Gov. Mike Pence all the trappings of an “anti-gay” law.
Although much of the discussion so far has centered on seemingly minor issues like whether a photographer should have to shoot a same-sex wedding or whether a baker should be able to refuse to make a cake for a gay couple, Sam Baker, writing in the National Journal, notes that
[T]he potential reach is much greater. As more states adopt similar proposals … religious liberty could be used to defend discrimination in housing or by employers who object to providing same-sex spousal benefits.
On the heels of Indiana’s Religious Freedom Restoration Act, the Arkansas legislature approved an RFRA of its own that contained similar provisions to the Indiana law. Although Arkansas Gov. Asa Hutchinson had earlier indicated that he would sign the bill, The Hill reports that he now appears to be “backing down amid a growing outcry over similar legislation in Indiana.” Hutchinson is quoted as saying,
“I am asking the Legislature to take a look at this bill, to recall it, or to provide me a changed bill that will make Arkansas [Religious Freedom Restoration Act] law mirror the federal law.”
Indiana Gov. Mike Pence is also backtracking, vowing that the state will alter its RFRA, and calling on “lawmakers to pass legislation making it clear ‘that this law does not give businesses the right to deny services to anyone.’ ”
Religious freedom is a precious right, and should be vigilantly protected. But it must not be turned into a weapon to deny the basic rights of others.
That is a lesson that many are still struggling to learn.