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:
Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-fundedtravel to the state.
Is the Religious Freedom Restoration Act really a license to discriminate against gay people?
Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded
Is the Religious Freedom Restoration Act really a license to discriminate against gay people?
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 reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person'sfree exercise
of religion to be "substantially burdened" by a law only if the law
furthers 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 alwayswin . 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 RFRA?
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 twentieth 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 (note that Mississippi and Indiana have passed RFRA since this map was made):
Is there any difference between Indiana's law and the federal law?
Nothing significant. Here's the text of the federal RFRA:
Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:
We shouldn't hold Ashton Kutcher and Miley Cyrus entirely responsible for their ignorance. Their job, after all, is to make bad music and bad movies, not report the news. Bad journalism is to blame here. 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.
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 are invalid if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply in religious freedom cases.
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 reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person's
So the law doesn't say that a person making a religious claim will always
If there's already a federal RFRA in place, why did Indiana pass its own RFRA?
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 twentieth 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 (note that Mississippi and Indiana have passed RFRA since this map was made):
Is there any difference between Indiana's law and the federal law?
Nothing significant. Here's the text of the federal RFRA:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—And here is the text of Indiana's RFRA:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
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.
Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well 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 more on these matters.)
Late last night just outside the Senate chamber, I asked Senator Chuck Schumer of New York (who sponsored federal RFRA in 1993) to comment on the story. "Not right now," he replied. Schumer still hasn't found time to respond to this question on Twitter:
.@SenSchumer could you explain how Indiana's RFRA is different than the federal RFRA you sponsored in 1993?
— John McCormack (@McCormackJohn) March 26, 2015
So why 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 bad movies, not report the news. Bad journalism is to blame here. 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.
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 are invalid if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply in religious freedom cases.
As Stanford's Michael McConnell told me last year, RFRA laws haven'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 concerning gay rights and religious freedom 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 ceremony because of religious objections. But a small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different than the specter of Jim Crow for gay Americans--hotels and restaurants turning away gay people simply because they are gay.
That of course is a purely hypothetical case for now. In the real world, the debate concerning gay rights and religious freedom 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 ceremony because of religious objections. But a small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different than the specter of Jim Crow for gay Americans--hotels and restaurants turning away gay people simply because they are gay.
The point of RFRA is not to discriminate against gay Americans. It is
supposed to prevent the government from discriminating against
religious Americans.
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