Mike Pence has said he wants to clarify Indiana’s Religious Freedom Restoration Act (RFRA) to counteract the misunderstanding and misinformation that many have perpetuated. Part of the discussion centers around what makes this version of RFRA unique and worthy of such backlash.
In a way, they are correct. It is dishonest to say there is no difference between the RFRA situation in a state like Connecticut and Indiana. But it is no less dishonest to claim these distinctions somehow create a unique zone of discrimination once you cross the border into the Hoosier state.
One cannot reasonably ask supporters of the RFRA to recognize the nuanced differences between various state and federal laws, if your depiction of Indiana’s law is driven by gross over-generalizations and fear-mongering.
With that being said, here are three distinctions between Indiana and other instances of RFRA, but also why these differences should not elicit the visceral response that has been so common over the last view days.
1. RFRA protections extend to for-profit businesses.
Section 7 of Indiana’s RFRA does define “person” as to include individuals, churches, religious organizations or for-profit companies. Most other states and the federal RFRA do not include that type of language.
But those laws were passed before the recent Burwell vs. Hobby Lobby Stores (2014), which allowed the religious owners of Hobby Lobby to opt out of portions of the Affordable Care Act that mandated they pay for forms of contraceptions they opposed on religious grounds.
If the Supreme Court has already ruled the federal RFRA extends to companies like Hobby Lobby, what makes the Indiana law, which merely includes what was already interpreted as being there, so much worse in that regard?
Companies already have the right to act according to their conscience, as Apple did when they pulled the Manhattan Declaration app from their iTunes store. If Tim Cook and Apple can make that decision based on their deeply held beliefs, other businesses should have the same rights.
2. Discrimination based on sexual orientation is not banned in Indiana.
In one of the more ironic happenings surrounding this law, of which there are many, Connecticut Gov. Dan Malloy issued an executive order banning state-funding travel to Indiana because of their RFRA. The only problem? Connecticut has their own RFRA.
The response is that Connecticut has laws that ban discrimination based on sexual orientation, while Indiana does not. This makes the RFRA much more dangerous to gay and lesbian individuals, the argument goes.
Except, the RFRA does not change anything in Indiana. If it is legal to discriminate against a gay individual after RFRA, it was legal to do so before. Were there widespread instances of restaurants refusing to seat lesbian couples or stores denying service to gay men?
But this brings us more to the point. If this is the issue, why all the fuss over the RFRA? As Sean Davis wrote, “Furthermore, if anti-gay discrimination is what is truly animating those voicing opposition to RFRA, why on earth are they focusing on Indiana’s RFRA and not on enacting the anti-discrimination bans that are in force in states like Connecticut?”
Merely opposing RFRA makes it seem as if the real target is not the reduction of discrimination, but rather the reduction of religious liberty.
3. The government does not have to be a party in a lawsuit to appeal to RFRA.
In most previous incarnations of an RFRA, they are specifically focused on cases where the government is a direct party in the dispute—instances like a state prison wants a Muslim inmate to shave his religious beard or a federal agency is preventing a Native American tribe from using eagle feathers.
Section 9 of Indiana’s law allows the use of RFRA “regardless of whether the state or any other governmental entity is a party to the proceeding.” Even if the matter is a civil case without the government directly involved, one can appeal to RFRA for protection.
But anyone using any force—whether it is governmental, vocational, societal, etc.— to dictate a religious individual contradict their beliefs would seem to be something we would have a vested interest in preventing.
Recently, Kawal Tagore, a Sikh woman, was fired from the IRS because she carried a kirpan, a required Sikh religious symbol that resembles a small knife with a curved blade. She sought protection under the RFRA and the government agreed to settle. Why should she only have protection if her employer happens to be a government agency?
I should not be able to force a recently converted Muslim butcher to violate his convictions about pork because I want him to restock his shop with bacon. Nor should an individual be able to force a Muslim printer to print a magazine depicting Mohammed. Nor should a Christian baker be required to make a cake for any ceremony with which they disagree religiously.
Yes, Indiana’s law was motivated in part by the legalization of same-sex marriage in the state. It is an attempt to carve out religious protections within the rapidly changing environment because, as the outrage has indicated, many of its opponents have no concern whatsoever for protecting and defending religious liberty if it ever comes in conflict with their own deeply held positions.
As Ross Douthat previously wrote, in many ways, conservatives are merely negotiating the terms of our surrender. Even raising concerns about how gay marriage and the rights and recognitions that follow suit will interact with religious freedom is seen as bigotry.
What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.
That’s the question. Are those deemed “bigots” ever allowed to even negotiate or attempt to carve out protections?
Think carefully about that question because the ever-expanding definition will eventually close in on us all. It would do everyone on every side of this discussion well to consider our tactics and our endgame. We need to consider where exactly this ends.
I have no answer for that, but I know where it should start—with people being honest about their positions and the positions of those with whom they disagree.