Is the Indiana Version of RFRA an Unwarranted Extension of the Freedoms of Religion and Conscience?

A friend of mine shared an article through Facebook from the Atlantic entitled "What Makes Indiana's Religious-Freedom Law Different?" and subtitled "The new statute's defenders claim it simply mirrors existing federal rules, but it contains two provisions that put new obstacles in the path of equality." Towards the end of the article, the author, Garrett Epps, makes this observation: "[I]s the fuss over the Indiana law overblown? No. 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.'"

With all due respect to Mr. Epps, the article does not point to anything new or insidious in the law that would make this law anything more than an updated restatement by Indiana of the same rights already protected under the federal RFRA (the "Religious Freedom Restoration Act"). Instead, Mr. Epps aimlessly kicks up dust to obfuscate the issue. Neither of the alleged points of distinction raised in his article, assuming that they are accurate, changes anything.

The first alleged point of distinction is that “the Indiana law explicitly allows any for-profit business to assert a right to ‘the free exercise of religion.’” Yes, that is true that it does. But in doing so, it is simply acknowledging that the law has changed since the days of the federal RFRA act. Specifically, as the article points out, the Hobby Lobby decision made clear what everyone already knew: for-profit businesses have a limited freedom of religion/conscience under the federal RFRA. The article suggests that legal thinkers believed the idea “outrageous” until Hobby Lobby was passed down, but as a person who teaches Constitutional Law, my reading of the materials prior to the Hobby Lobby case was that most legal thinkers know that the court acknowledged what was obvious. For a long time, corporations (both for-profit and not-for-profit) have had a limited right of free speech. Likewise, corporations have been exercising a limited freedom of conscience for years. (In fact, it's ironic that the same groups that condemn a corporation like Hobby Lobby from exercising its freedom to support traditional American values claiming that Hobby Lobby has no right to take such a position will publish notices encouraging people to support corporations like General Mills that give large amounts of money to support more progressive causes like gay marriage. It would be logically inconsistent to claim that only the more liberal or progressive groups have the right to exercise a freedom of conscience while more traditional or conservative groups cannot.) The Indiana RFRA law simply acknowledges the present state of legal precedent, so the law is not some new, strange outreach in this direction.

The second alleged point of distinction is that “the Indiana statute explicitly makes a business’s ‘free exercise’ right a defense against a private lawsuit by another person, rather than simply against actions brought by government.” This is a distinction without a difference. Regardless of whether the action is brought by a state agency directly, or if the action is brought by a private party who is using the judicial branch (an arm of the state, by the way) to force someone to violate their freedom of conscience/religion is irrelevant. In both cases, state power is being used to coerce someone to violate their conscience.

The comparison at the outset to the civil rights movement (a usual tactic of those that support gay marriage) is misplaced. A friend of mine shared an article that I am going to paraphrase here because it makes the point. When discrimination is so wide-spread as to make life untenable for the group being discriminated against, the state should step in and take action. A good example is the Jim Crow south. In that case, it was appropriate for government to prohibit private discrimination. Private action simply didn’t provide a remedy, and it was not the case that if lunch counter A refused to serve blacks, they could just go next door to lunch counter B. That is why the 1964 Civil Rights Act was an appropriate use of government power. The gay couples are not facing the same day today. Rather, they are looking to use the police power of government to stamp out an opposing point of view.

The New Mexico case cited is a good example. The photographer in question had never refused to photograph gay people. It was only when the photographer was asked to photograph a gay wedding (something which the photographer’s deeply held rights of conscience/religion said was wrong) that the photographer said no. But even in saying no, the photographer told the gay couple of other photographers in town who would be happy to take their wedding photos. The couple decided to sue apparently because they wanted to punish the photographer who disagreed with them. The New Mexico court decided the case wrongly, and it is appropriate that a state should enact a RFRA law to protect the rights of conscience of business-persons which includes private lawsuits because they are, at heart, state action.

One of the most ancient and cherished freedoms in America is the freedom for individuals to hold their religious and conscientious beliefs without being coerced by the government to act inconsistent with those beliefs. The strong desire to support religious freedom in America dates back as early as the Pilgrims who fled to this country primarily to practice their religion in peace. This cherished right has been being chipped away (including by the U.S. Supreme Court in the Smith case), and both the federal government and the states have nearly unanimously voted to support their restoration without any controversy -- until now. I strongly suspect that the reason that any doubt exists about this Indiana Law is due to demagoguery by those who want to preserve the weapon of privately initiated lawsuits to allow states and the federal government to enforce their desire for gay marriage over the rights of conscience held by others (primarily religious people). This should not be allowed and Indiana should stand firm that protecting religious liberty by the Indiana RFRA is appropriate and not an overreach.


Popular posts from this blog

How Many Children in Bethlehem Did Herod Kill?

Where did Jesus say "It is better to give than receive?"

The Bogus Gandhi Quote

Discussing Embryonic Stem Cell Research

Revamping and New Articles at the CADRE Site

Exodus 22:18 - Are Followers of God to Kill Witches?

A Botched Abortion Shows the Lies of Pro-Choice Proponents

Jewish writings and a change in the Temple at the time of the Death of Jesus

Tillich, part 2: What does it mean to say "God is Being Itself?"

The Folded Napkin Legend