How Indiana furor is poisoning well for religious freedom

Indiana Gov. Mike Pence
Indiana Gov. Mike Pence AP

Nationwide outrage over Indiana’s Religious Freedom Restoration Act is a remarkable sign of just how far the country has come on the issue of civil rights for lesbian, gay, bisexual and transgender Americans.

People from basketball luminary Charles Barkley to Apple CEO Tim Cook have sounded an alarm about a law that critics charge will promote discrimination against LGBT people.

Gov. Mike Pence is scrambling to contain the damage as the “boycott Indiana” movement goes viral. Absent repeal or a major fix, it’s entirely possible that the Final Four will play in Indianapolis this week for the final time – a scary prospect for basketball-crazed Hoosiers.

At a news conference this week, Pence kept repeating the mantra “RFRA is not a license to discriminate” – and announced that he has asked the legislature to amend the law to make that clear.

The governor blamed opponents and inaccurate media coverage for creating the “misperception” that Indiana’s RFRA would permit discrimination against LGBT people. While it’s certainly true that heated rhetoric describing the law as “anti-gay” and alarmist media stories contributed to the backlash, that’s not how Indiana’s RFRA got a bad rap in the first place.

In an exchange with reporters, Pence refused to acknowledge that many supporters – including leaders of conservative Christian groups standing by the governor’s side when he signed the bill into law – pushed for RFRA precisely because they hope it will permit business owners to deny services and benefits to same-sex couples.

As a supporter of both equality and religious freedom, I am torn between celebrating the outrage at the specter of discrimination and mourning the damage done to the cause of religious freedom.

The Indiana debate has been so misleading, vindictive and divisive that any rational discussion of how we can uphold both nondiscrimination and religious freedom may no longer be possible.

Here’s the tragic irony:

As the governor belatedly admitted at his news conference, the Indiana RFRA is very unlikely to protect religious claims in the way many proponents promise – and thus equally unlikely to bring about the wave of anti-gay discrimination that many opponents fear.

RFRA is not the villain. The 1990 U.S. Supreme Court decision – Employment Division v. Smith – sharply curtailed the application of the “compelling state interest” test long used by courts to determine when government laws or regulations substantially burden the free exercise of religion.

Previously, many religious claims for exemption were accommodated – unless the government could demonstrate a compelling state interest in refusing and no less restrictive way of accomplishing that interest.

In the three years following Smith, more than 50 reported cases were decided against religious groups and individuals. As a result, a broad coalition of groups worked to pass the Religious Freedom Restoration Act, signed into law by President Bill Clinton in 1993. The intent was to “restore” pre-Smith protection for religious freedom.

Then in 1997, the Supreme Court struck down RFRA as it applied to the states, although, as we saw in the Hobby Lobby decision last year, it still applies to the federal government. Since that time, 20 states have passed state RFRAs. Courts in at least 10 other states have provided the same level of protection through religious freedom provisions of state constitutions.

Indiana’s RFRA appears to go beyond other laws by, for example, explicitly extending protection to corporations (and not just “closely held corporations” as in the Hobby Lobby case).

But many legal scholars agree that business owners cannot use RFRA

– in Indiana or anywhere else – to discriminate against LGBT people. As Indiana University law professor Daniel Conkle (a supporter of LGBT rights who testified in favor of the Indiana RFRA) has pointed out, there are no RFRA cases where the court has upheld a religious claim in a discrimination case.

“The ‘license-to-discriminate’ argument that seems to have this relentless repetition,” Conkle told the Associated Press, “is just legally wrong.”

Properly understood and applied, RFRAs are an important protection for free exercise of religion – especially for members of minority religious groups who often need exemptions from government actions that burden the practice of their faith.

Enacting RFRAs to fight the effects of same-sex marriage not only gives RFRA a bad name, it also poisons the well for religious freedom.

Instead of using RFRA as a weapon in the culture wars, religious people seeking religious exemptions need to sit down with the other side and seek common ground on how to both uphold LGBT civil rights and protect religious freedom. If Utah can do it, so can Indiana.

To send a clear, unmistakable message that Indiana does not discriminate, Indiana lawmakers must pass a law protecting LGBT people from discrimination. Once discrimination is off the table, RFRA opponents might once again see the merit in legislation that guards the free exercise of religion.

If lawmakers don’t act quickly to undo the damage, the real fallout from the Indiana debate will be “religious freedom = bigotry.” And that would be a disaster for the future of religious freedom in America.

Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute in Washington.