Recently Indiana passed a Religious Freedom Restoration Act (RFRA), resulting in a huge backlash. Opponents criticize it for allegedly being a license to discriminate and an assault on LGBT rights. Most of their criticisms ignore the actual facts of the law, and their goal of laws controlling businesses and customers would result in a less free, not freer, society.
First of all, the Indiana RFRA does not directly address LGBT issues at all. It’s very similar in language to the RFRA enacted in 1993 under President Clinton and those of other states. All these bills do is allow a religious person to invoke their religion in challenging government policy.
Specifically, these laws mean that in order for the government to enforce a policy against a religious person, it must show that the policy does not “substantially burden” that person’s religion unless the policy 1) furthers “a compelling government interest” and 2) is “the least restrictive means” of doing so. Such laws do not define who wins the lawsuit; it just means that the government has to show that it has a very good reason for the policy in question.
These sorts of laws have been used in a wide variety of cases. The federal law was brought about with almost unanimous support after the Supreme Court ruled that Native Americans who had been fired for the religious use of peyote were not entitled to unemployment benefits. The most prominent use of the federal law of late is the Hobby Lobby case.
Less controversially, the federal law has recently been used to require that the federal government return the eagle feathers it had taken from a Native American man during a religious ceremony even though he was not a member of a federally recognized tribe. A federal version specifically for prisoners has been used to ensure that a Muslim prisoner could grow a half-inch beard and that an Orthodox Jewish prisoner could receive kosher meals.
However, the court held that the federal RFRA could not be applied to the states, so many states passed their own versions that mirrored the federal version. The Texas version was used to ensure that a young Native American boy would not have to have his hair cut in accordance with a strict school district policy against boys having long hair.
Opponents of Indiana’s law say that it is different from other legislation in two main ways. Neither of these cases turn the Indiana law into a discriminatory law.
First, they take issue with the Indiana law including for-profit corporations as persons. This is not cause for concern. Under federal law, unless otherwise stated, the word “person” includes corporations. The federal RFRA made no exception for corporations. Also, in the Hobby Lobby case, the Supreme Court stated that the federal RFRA applies to at least some corporations.
Secondly, opponents dislike that the Indiana law applies to private lawsuits, not just government action. This view neglects that all lawsuits are undertaken under the laws of the state and through the courts. Even in private lawsuits, government action is not absent. This is why courts cannot enforce private restrictive covenants that discriminate on the basis of race. To do so would violate the Fourteenth Amendment.
Could the Indiana version be used to allow businesses to turn away homosexual customers? First, a couple of clarifications. Despite this bill being portrayed as allowing businesses to deny service to LGBT customers, virtually every case of a business refusing service (in any state) has been for a same-sex wedding specifically. Some conservative Christians see catering or photographing a same-sex wedding as taking part in something that their religion prohibits. Reports of businesses turning away LGBT individuals are rare to nonexistent.
Secondly, denying service on the basis of sexual orientation was already legal in most of Indiana. Since “everything which is not forbidden is allowed,” and Indiana as a whole had not mandated equal service, discrimination was legal in most of the state. This is the case in many states, including Oklahoma. Yet, opponents of Indiana’s RFRA did not protest until after the law was passed.
This is why the Indiana Democrats didn’t think the “fix” went far enough and refused to vote for it. The fix, announced by Indiana Governor Pence on Thursday, states that RFRA can’t be used to justify discrimination, ensuring that the cities that have banned discrimination can continue to do so.
However, it doesn’t actually ban discrimination. A business in an area that doesn’t have an actual ban on discrimination can discriminate regardless of the fix and whether or not Indiana’s RFRA exists at all.
As to whether or not Indiana’s RFRA could be used to discriminate where discrimination is illegal, the answer is maybe. A judge would have to rule that serving for a same-sex wedding substantially burdens someone’s religious beliefs and either does not further a compelling government interest or is not the least restrictive means of pursuing that interest. Also, it’s worth noting that in the 21 years RFRAs have existed, none have ever been used to justify discrimination.
The Indiana law does not guarantee that religious business owners could discriminate against same-sex weddings. However, allowing the business owners to do so would be the best thing for a free society. Opponents of the law, with their boycotts against the state as a whole, speak as though the state allowing private discrimination is the same as endorsing that discrimination. Does the First Amendment mean that the government endorses hateful language? Of course not, and the standard is the same with discrimination.
Opponents of the law may be rightfully indignant about discrimination, but they should consider the nature of laws. All laws must be enforced through lawsuits, fines or imprisonment. Is punishing small businesses who won’t take part in a wedding the hallmark of a free and just society?
Freedom, being the absence of government coercion, means that businesses are free to turn away paying customers (generally not a good business strategy) and that individuals can refuse to support businesses whose practices they find abhorrent. Besides, why would anyone want someone at their wedding who doesn’t believe that the marriage should take place at all? It’s not as though every town only has one bakery or one photographer.
In the long run, businesses who turn away services will be less competitive and may ultimately go out of business. A free society allows for freedom of contract, allowing for same-sex couples to join together in civil partnership and for businesses to perform services for whom they choose.