On Thursday, Indiana governor Mike Pence signed the Religious Freedom Restoration Act (RFRA) into law, and some celebrities, politicians, and journalists–including Miley Cyrus, Ashton Kutcher, and Hillary Clinton, just to name a few–are absolutely outraged. They say the law is a license to discriminate against gay people:
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
Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT http://t.co/mDhpS18oEH
— Hillary Clinton (@HillaryClinton) March 27, 2015
Is the Religious Freedom Restoration Act a license to discriminate against gay people?
No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: “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 is the Religious Freedom Restoration Act, and what does it say?
The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.
The law establishes a balancing test for courts to apply in religious liberty cases. RFRA allows a person’s sincerely held religious beliefs to be “substantially burdened” by a law only if the law achieves a “compelling governmental interest” in the “least restrictive means of furthering that compelling governmental interest.”
So the law doesn’t say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven’t.
If there’s already a federal RFRA in place, why did Indiana pass its own?
Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the nineteenth to do so. Other states have state court rulings that provide RFRA-like protections. Here’s a helpful map from 2014 that shows you which states have RFRA protections:
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Is there any difference between Indiana’s law and the federal law?
Nothing significant. Here’s the text of the federal RFRA:
(1) furthers a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
And here is the text of Indiana’s RFRA:
Indiana’s RFRA makes it explicit that the law applies to persons engaged in business as will as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for a more in depth look at this dispute.)
So are so many people saying that Indiana’s law is an unprecedented attack on gay people?
We shouldn’t hold Ashton Kutcher and Miley Cyrus entirely responsible for their ignorance. Their job, after all, is to make bad music and movies, not report the news. Bad journalism is to blame. See this CNN headline that says the law “allows biz to reject gay customers,” or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.
Indiana’s RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn’t commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash and boycotts.
It is true that several local ordinances in Indiana prohibit discrimination on the basis of sexual orientation, but RFRA does not declare that those ordinances don’t apply if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply if religious liberty defense is made.
As Stanford’s Michael McConnell told me last year, RFRA hasn’t yet collided with public accommodation laws. But what if they do? “For the most part, I think the public accommodation laws are going to win out,” McConnell said. “But I could imagine a circumstance where you have somebody renting out a bedroom in their house, and they have children they’re trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it’s no real interference with their ability to find housing–these cases are just not all one way or the other. They depend powerfully on the particular circumstance.”
That of course is a purely hypothetical case for now. In the real world, the debate has focused on a handful of cases involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings. You could just as easily imagine a case in which a wedding singer declines to work a same-sex wedding because of religious objections. But a small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different from the specter of Jim Crow for gay Americans–hotels and restaurants turning away gay people simply because they are gay.
