Unless you’ve been hiding under a rock for the past week or so, you’ve probably seen something of the sh!tstorm that has erupted over the decision by the Governor of Indiana, Mike Pence (quite possibly a candidate for president but I digress), to sign a “Religious Freedom Restoration Act” into law in that state. The NY Times declared that the law has been “denounced as [an] invitation to discriminate against gays”; the “#BoycottIndiana” hashtag is trending on Twitter; major entertainers, athletes, sports leagues, businesses, and others are talking about withdrawing from the state or cancelling plans to appear there or to expand their businesses; everything’s just going all kinds of wrong in the Hoosier state.
This morning, Governor Pence went on This Week with George Stephanopoulos to try to defend himself and the law he signed, and his principal argument is a pretty straightforward one: our law is exactly the same as the federal Religious Freedom Restoration Act (RFRA), which President Clinton signed, and it’s also the same as state laws that are already in effect in roughly 20 other states. All basically true [UPDATE: however, see additional notes at the end]. So, he asks, why is everyone picking on Indiana?
Two words: Hobby Lobby.
A little history is in order here. Back in 1990, the Supreme Court held (in Employment Division v. Smith) that Native Americans who used peyote as part of a religious ceremony, and who as a result were disqualified from receiving unemployment compensation from the state, could not invoke the First Amendment’s “free exercise” clause to argue that their sincerely-held religious beliefs regarding peyote prohibited the state from punishing them for its use. The Court, in an opinion by Justice Scalia, ruled that generally-applicable laws that don’t single out religion for negative treatment apply across the board, and that the First Amendment does not authorize religiously-based exemptions.
In response, Congress enacted (and President Clinton signed) RFRA, a federal statute that was designed to restore the “test” for free exercise claims that had been in place before the Smith case came down. Under the old test, and now under RFRA, a federal law or regulation that “substantially burdens” religious exercise can be applied against the believers only if it serves a “compelling” governmental interest, and also if there is no alternative, less restrictive means available to achieve that interest. And a number of states followed suit, enacting state laws that mirrored the federal protections in RFRA. The idea with all of these statutes was always that people like the Native Americans in Smith wouldn’t be punished for non-mainstream religious practices that run afoul of other laws.
After the initial flurry of excitement around enacting them, not much was heard about either federal or state RFRA laws for many years. A few cases popped up now and then, several involving the rights of prisoners to engage in certain religious practices that are inconsistent with prison regulations. But for the most part, they weren’t front-page news, and this remained a fairly sleepy corner of the law, largely limited to prisoners’ rights advocates.
And then the Affordable Care Act (ACA) happened, and the Hobby Lobby chain of stores claimed that the ACA’s “contraception mandate” infringed on its owners’ religious beliefs, in violation of RFRA. This idea that a for-profit business, rather than an individual or a religious institution like a church, could raise a RFRA claim, was a novel one, made even more controversial by the fact that unlike, say, the peyote case, in Hobby Lobby a victory for the person claiming religious freedom would mean the loss of legal rights for someone else. As you probably recall, this case kind of set the world on fire for a while. All of a sudden, RFRA was front-page news again – and when Hobby Lobby won the case, that only poured gasoline on the fire.
Of course, Hobby Lobby was about providing contraception, not about refusing service to homosexuals. So why the #BoycottIndiana movement? This, I think, we can ascribe in part to Justice Ginsburg’s dissent in Hobby Lobby, which sounded the alarm bell as to how far the majority’s decision might actually go.
Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), … In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for-profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals”); Elane Photography, LLC v. Willock, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners) (NM 2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? … Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Not much help there for the lower courts bound by today’s decision.
So, in a sense, Governor Pence is right that Indiana isn’t doing anything that the federal government and a bunch of states haven’t already done. And if Indiana had enacted this law before Hobby Lobby raised its claim, most likely nobody would have batted an eyelash.
But, unfortunately for Indiana, context is everything, and the legal context of what RFRA-type laws do changed dramatically after Hobby Lobby. Now, a state enacting a RFRA-type law is doing so knowing that it may well be providing legal cover not only to individuals and religious organizations, but to any for-profit business whose owners have religious beliefs that may come into conflict with other laws. Furthermore, now, a successful RFRA claim can actually deprive people of legal rights to which they’d otherwise be entitled – after all, Hobby Lobby employees presumably now do not have full contraceptive coverage despite the ACA’s promise that they would. Without question, the scenarios Justice Ginsburg raises will recur (after all, the photography company who didn’t want to work at a same-sex wedding was a real case). Indiana knew that. They went ahead anyway.
So no, Governor Pence, you don’t get a pass just because RFRA-like laws already exist elsewhere. You knew (or you should have known, and if you didn’t, that’s on you) that in the wake of Hobby Lobby, RFRA means something very different than it did before, and therefore the consequences of signing it into law would be dramatically different than what they were before. You should’ve seen this shitstorm coming a mile away (rather like Governor Brewer did in Arizona when she vetoed a similar bill). You want to play in the big leagues, you gotta be able to hit a major-league fastball. You whiffed on this one big time.
UPDATE: It turns out that, in fact, there are some legal differences between Indiana’s RFRA and the federal one. Probably the most important one is that, while the federal RFRA permits religious freedom to be raised as a claim or defense “in a judicial proceeding and obtain appropriate relief against a government,” Indiana’s RFRA can be invoked “in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” So, hypothetically, imagine that a business refuses service to a gay person, and the gay person sues the business under a local anti-discrimination ordinance. The business owner could not invoke the federal version of RFRA in that situation, because the government is not involved. But apparently, the business owner could invoke the Indiana version in that case.
How much difference does this make? Well, it’s certainly worth mentioning. But I still think that the big change here is context, not the technical distinctions between the statutes. After all, the hullaballoo over what Indiana did erupted long before clever folks like this guy and this guy began calling attention to the ways in which the Indiana statute differs from others already on the books elsewhere. So, is Indiana’s statute worse than the others out there? Yes, actually, it is, though I do think in a fairly modest way. But to me, anyway, the more important thing is that, in the last couple of years, the earth has shifted dramatically under the entire debate over statutes that protect “religious freedom.”
Bob Neer says
As a result of this law?
Mark L. Bail says
http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/
Bob Neer says
I asked about subsequent to its passage.
Mark L. Bail says
I guess we’ll wait and see.
sue-kennedy says
in July.
Patrick says
Was there ever a resolution to this?
http://abcnews.go.com/International/story?id=2827800
I couldn’t google an answer. The situation seems related.
David says
Would be useful to know the answer.
Patrick says
Muslim cabbies lose round in court
http://usatoday30.usatoday.com/news/religion/2008-09-09-muslim-taxis_N.htm
lynne says
…if you are not a Muslim, I guess. IOKIYANAM?
Donald Green says
but this is not the issue here. HL was about an agreement between an employer and an employee. The issue here is about a business open to the public, and the ability to refuse service to a customer.
It rings truer to a public accommodations situation. You can refuse service to an unruly person, but not by what they look like etc. If a person or persons are human beings seeking a product offered publicly, then they should be able to buy it. If someone wants a more constricted clientele, they’ll have to sell their wares on their church’s property.
However they will also have to supply their own public utilities since taxpayers chip in for that. In short what such owners of business are asking for is societal chaos.
No one will stop them from holding personal beliefs, but they can only practice its tenets on themselves, not others. Even in within families from the same church, not all members choose to follow the rules of their religion the same way.
dave-from-hvad says
to state that it applies only to activities specifically engaged in as part of religious practices or rituals (e.g., smoking peyote), and cannot be used to justify discrimination based on religious beliefs? That would seem to preserve the original intent of the law. Not only did Hobby Lobby extend the RFRA exemption to businesses, but it expanded the exemption from religious practices to include business activities not necessarily associated with religion (e.g. dispensing contraceptives).
Of course, good luck getting Congress to do that.
David says
That’s probably what everyone was thinking when the law was originally enacted, but unfortunately there’s zero chance of rewriting it in the current Congress. Plus, since the federal RFRA applies only to the federal government, it would have to be altered by each state legislature that has one of these laws as well.
dave-from-hvad says
of the Republican Party. Changing RFRA to simply state that it should not promote discriminatory practices would seem to be something that only the most extreme of right-wingers would oppose. I can’t imagine most Republicans would oppose it. Yet, as you say, there’s zero chance of Congress taking that common-sense step. As a result, the door is left open for the passage of more and more discriminatory state legislation, such as Indiana’s new law.
Mr. Lynne says
David, what do you make of the scope distinctions that TP made:
Christopher says
…I would interpret the free exercise clause opposite Scalia to say the peyote use as part of religious ritual should be exempt from other laws against it. Conservatives interpret free exercise too broadly to allow it to harm others. The drafters of the first amendment, with Old World experiences of getting arrested for attending the wrong church, knew exactly what they were trying to protect. It certainly wasn’t the “right” to deny services generally available to the public.
jconway says
It has been quite helpful to link to this with other Republican/libertarian friends who think this is moderate, or my socially conservative friends who think opposing this is somehow government discriminating against Christians. Very good stuff. Kleinman made the same summary on CBS This Morning so it seems that the media is finally doing it’s job on this too.
Pence either comes across as too stupid to know what he was signing or that he did know and is pretending to be stupid. Either way, not a great look for a possible President…
centralmassdad says
Especially the update.
I get why the language of this statute makes this different from the federal law– it is that the “religious belief” can be used as a defense in a private action for discrimination.
What bugs me a bit is that the statute, and the opposition to it, is largely symbolic, because LGBT is not a protected class in Indiana, and so there can’t be a private action in the first place. So a defense against that private action is sort of pointless.
Meanwhile, a very red state with the fastest growing economy and population in the country–North Dakota– actually has a bill up for vote this week that would outlaw discrimination against LGBT, and that doesn’t merit any kind of campaign at all.
I am not sure I see the value in what appears to be an entirely symbolic campaign in Indiana. If the measure is “clarified” or even repealed, LGBT will have the same rights in Indiana that they did before– virtually none.
jconway says
I agree the opposition is a bit scattershot and patently hypocritical in some areas (Apple and Wal-Mart lecturing anyone, even Mike Pence, on human rights is laughable). But, this law is terrible and having it suffer a quick death in one of the reddest states has already forced the Governor of Arkansas to add pertinent anti-LGBT discrimination clauses to his bill-and lo and behold a lot of the original sponsors are now opposing that bill even if they insisted two weeks ago it didn’t discriminate.
It’s a way to identify where people stand, and it’s also put all of the 2016 Republicans-even Jeb-on the record as supporting this law. Rubio’s tweet could even be interpreted as opposing any kind of anti-discrimination laws applied to any business on religious grounds, even race. With the SCOTUS decision likely this summer, the wave of massive resistance is already underway and needs to be met head on.
Christopher says
…that it is very easy and really not all that contradictory to be both corporatist and socially liberal. I believe the Koch brothers are as well.
centralmassdad says
One of the reasons politics is dumb, though.
Who needed to figure out where Arkansas Republicans stand on this?
Anyway, the No Pizza For Gays people can have their no pizza for gay weddings (I guess they haven’t been to one. Pizza?!) now, just like they always could, and can open another store in Arkansas, because sexual orientation is not a class protected by those state’s anti-discrimination laws.
A good set of symbolic victories, though. Yay.
David says
it’s of course true that IN has no state-level anti-discrimination law protecting LGBT people. But Indianapolis does, and I think there are some other local laws as well. So the just-adopted fix to RFRA should help in those localities, and might actually create some momentum to fix the state anti-discrimination law as well (though, admittedly, that seems like a long shot).