Why Indiana’s religious freedom law is causing such an uproar

Originally at: http://www.cruxnow.com/life/2015/04/01/why-indianas-religious-freedom-law-is-causing-such-an-uproar/

When celebrities, CEOs, and even some Christian groups took to Twitter last week to protest Indiana’s new religious freedom law, supporters and state officials had a ready answer: Everybody’s doing it.

And they weren’t referring to the dozen or so other states currently debating similar legislation. Rather, they pointed to the 21 states that already have approved religious rights laws — including blue states Connecticut, Rhode Island, and Illinois.

So why is everybody attacking the Hoosiers? (Objections and protests are being lodged in other states that have religious exemption bills under consideration, such as Arkansas, Georgia, and North Carolina.)

It has to do with intent, as well as an expanded definition of who — or what — is entitled to religious liberty.

It’s no longer just individuals being protected from the overreach of government; it now extends to disputes between private parties, so even businesses can use religious freedom as a defense against discrimination suits.

Indiana’s law, and those being debated in a dozen other states, are coming after an outcry from social conservatives over episodes in which business owners were criticized or fined for refusing to provide services to gay couples who were getting married.

  • A Washington florist was fined $1,001 for refusing to provide flowers to a gay couple for their wedding, citing her Christian beliefs.
  • An Oregon bakery will have to pay a lesbian couple up to $150,000 for refusing to bake them a wedding cake two years ago.
  • A New Mexico photography studio was found to have violated the state’s Human Rights Act by refusing to photograph a lesbian couple’s commitment ceremony.

As Indiana’s bill was moving through the Legislature, its supporters rejected amendments that would have limited its potential to allow discrimination. And the governor signed the bill at a private ceremony attended by several leaders of conservative groups that have campaigned against same-sex marriage.

The other factor in many state proposals is an imminent decision by the US Supreme Court that could legalize gay marriage in all 50 states (it’s already legal in 37 of them).

In contrast, the motivation for the religious liberty laws passed before this latest push was far different.

It started with a federal statute, the Religious Freedom Restoration Act, or RFRA, that President Bill Clinton signed into law in 1993. It passed nearly unanimously in the House and Senate (Sen. Chuck Schumer of New York, poised to become the most powerful Democrat in the Senate when Sen. Harry Reid retires in 2016, introduced the bill as a congressman).

The law was designed to protect religious minorities from laws that inadvertently infringed on their practices. One example was a 1990 court ruling that held that Native Americans could not use peyote, a banned substance, in religious rituals.

Since the federal law passed, the Supreme Court ruled in 2006 that a religious sect could continue importing tea to use in a religious ritual that contained a banned hallucinogenic. And earlier this year, the court ruled that a Muslim inmate had the right to grow a short beard, as required by his religion, despite the prison’s ban on facial hair.

RFRA was meant to apply at the national, state, and local levels, but a 1997 Supreme Court decision said it only applied at the federal level. (The plaintiff in that case was the Catholic archbishop of San Antonio, Patrick Flores, who wanted to expand a church building in a designated historic district.)

So to remedy that, within five years 11 states passed their own versions: Alabama, Arizona, Florida, Idaho, Illinois, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas. Connecticut passed its RFRA law in 1993.

The next batch of states passed their RFRA laws mostly in response to the contraception mandate in the Affordable Care Act. Proponents said those whose religion forbids the use of artificial contraception should not have to provide health benefits that pay for it. And the US Supreme Court surprised many when it said, in the Hobby Lobby case, that those beliefs don’t have to be held just by religious nonprofits, but can be used even by for-profit corporations to deny birth control coverage.

Fast-forward to the current batch of controversial bills being debated across the country.

The law in Indiana comes on the heels of court-ordered same-sex marriage laws there, and it states that the definition of “person” includes businesses — so wedding vendors could cite religious beliefs to deny service.

A major part of the uproar over the Indiana law is over the fact that the state does not have separate laws protecting gays and lesbians from discrimination.

Contrast that with a similar religious freedom law passed in Utah earlier this year and due to take effect in May: Its passage was marked by hugs between representatives of LGBT groups and Mormon elders. That bill sought to protect the interests of both.

Among the 20 states that already have RFRA laws, four have separate employment and housing non-discrimination laws for gays and lesbians: Connecticut, Rhode Island, Illinois, and New Mexico, as do three of the 12 considering RFRA legislation: Hawaii, Colorado, and Nevada.

That lack of explicit bias protection is another reason for the uproar in Indiana.

“Of all the state ‘religious freedom’ laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people,” Garrett Epps, a constitutional law professor at the University of Baltimore, wrote in The Atlantic. “The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is ‘nothing new.’”

But Ryan Anderson, an analyst at the Heritage Foundation, said that laws like those in Indiana simply give all Americans, including business owners, the right to live out their religious beliefs in the public square.

“Although Americans are free to live as they choose, no one should demand that government coerce others into celebrating their relationship,” he said.

Stephen Prothero, writing in USA Today, said that although he supports same-sex marriage and LGBT non-discrimination laws, RFRA laws are important in order “to offer religious minorities a day in court, and only rarely do these cases concern gay rights.”

Prothero, who teaches religion at Boston University, said that religious liberty itself is in jeopardy, without much more than a shrug from the left.

“For as long as I can remember, the culture wars have been poisoning our politics, turning Democrats and Republicans into mortal enemies and transforming arenas that used to be blithely bipartisan into battlegrounds between good and evil,” he wrote. “Now our battles over ‘family values’ are threatening to kill religious liberty. And liberals do not much seem to care.”

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