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Religious Freedom Restoration Act:
What You Need to Know
A furor has erupted over an Indiana law that opponents say could give businesses the right to refuse service to gay people. And the controversy is reaching its height just as the Final Four comes to town.
Gov. Mike Pence, a possible Republican presidential candidate, says that the law is meant to protect free exercise of religion. The Republican leaders of the Indiana Legislature said Monday that the law does not permit discrimination of any kind, and they pledged to work quickly on language to clarify it.
On the other side are public figures as varied as Hillary Rodham Clinton, Miley Cyrus and the chief executive of Apple. The backlash grew on Monday when the state of Connecticut announced plans to suspend government travel to Indiana.
Here's what you need to know:
The law is known as Senate Bill 101. Pence signed it into law last week. It takes effect July 1. You can read the full bill here.
The text says that the state cannot "substantially burden a person's exercise of religion" unless it is furthering a "compelling government interest" and acting in the least restrictive way possible.
Nineteen states have so-called religious freedom laws. They are modeled after a federal law, the Religious Freedom Restoration Act, signed by President Bill Clinton in 1993.
It passed the House without objection and cleared the Senate by a vote of 97-3. Clinton said at the time that the law subjects the federal government to "a very high level of proof before it interferes with someone's free exercise of religion."
Some legal experts have said that Indiana's law differs from the federal law, and most other similar state laws, in ways that could allow businesses a wider berth to discriminate.
Gay marriage has been legal in Indiana since last October, when the Supreme Court declined to take up a challenge to a federal appeals court ruling. Indiana does not have a state law specifically protecting gay people from discrimination.
As The Washington Post pointed out over the weekend, the other 19 states that passed so-called religious freedom laws did so before gay marriage became legal in most of the country.
Last February, then-Gov. Jan Brewer of Arizona vetoed a similar law. "I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve," she said at the time.
The backlash against the proposed law in Arizona was severe, and mirrors what is happening in Indiana. The NFL was even said to be considering moving the Super Bowl out of the state.
Social conservatives say that the law would stop the government from compelling people to do things they object to on religious grounds, like catering or providing flowers for a gay wedding.
Daniel O. Conkle, an Indiana University law professor who supports both the law and gay marriage, offered a defense in an essay for The Indianapolis Star.
Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.
Indiana Right to Life and the anti-abortion group Susan B. Anthony List have also come out in support of the law.
Monday, Sen. Ted Cruz of Texas, a Republican presidential candidate, said in a Senate floor speech that Pence was "giving voice to millions of courageous conservatives across this country who are deeply concerned about the ongoing attacks upon our personal liberties."
Pence told The Indianapolis Star on Saturday that he was in talks with legislators and that a clarification could come this week. On Sunday, he gave a lengthy interview to ABC's "This Week" and defended the bill.
He said it was a "red herring" to suggest that the law is a license to discriminate. "This isn't about disputes between individuals; it's about government overreach," he said. "And I'm proud that Indiana stepped forward."
But he sidestepped direct questions on whether the law sanctions discrimination. George Stephanopoulos, the anchor, then asked him: "Yes or no, should it be legal to discriminate against gays and lesbians?"
George, you're you're following the mantra of the last week online, and you're trying to make this issue about something else. What I am for is protecting, with the highest standards in our courts, the religious liberty of Hoosiers. I signed the bill. We're going to continue to explain it to people that don't understand it. And in and if possible, we will find a way to amplify what this bill really is in a legislative process. But I stand by this law.
On Monday, Pence penned an op-ed in the Wall Street Journal in which he blamed Obamacare for creating the need for the law.
Mark Emmert, president of the NCAA, expressed concern last week about "how this legislation could affect our student-athletes and employees." And in an interview on Monday, Emmert said he was "deeply concerned" about the law. He hinted that the NCAA might have second thoughts about future events in Indiana.
College basketball's Final Four begins in Indianapolis on Saturday night. The tourism organization Visit Indianapolis told Forbes that the economic impact is more than $70 million.
Elsewhere, the outcry has been widespread. Washington Gov. Jay Inslee on Monday banned official state travel to Indiana, saying the law "appears to legalize private discrimination."
"I find Indiana's new law disturbing, particularly at a time when more and more states and people in America are embracing civil rights for everyone," Inslee wrote in an executive order.
Tim Cook, who as CEO of Apple is the most prominent openly gay corporate official in America, published an Op-Ed in The Washington Post describing laws like Indiana's as "very dangerous."
"These bills rationalize injustice by pretending to defend something many of us hold dear," he wrote. "They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality."
Angie's List said it was canceling a proposed expansion in Indianapolis. Miley Cyrus, in an Instagram post, used an expletive to refer to the governor and said: "The only place that has more idiots that Instagram is in politics."
And on Monday, the country's largest union of public employees, known as AFSCME, announced that it would move an October conference out of Indianapolis because of what it called an "un-American law."
Brian Bosma, the speaker of the state House, said that the law does not allow discrimination against "any segment of the Hoosier community." He said that lawmakers would be willing to "put an exclamation point on that," and to work quickly.
Both he and the Republican leader of the state Senate said that Pence could have given clearer answers on "This Week."
Tim Lanane, the leader of the minority Democrats in the
state Senate, said that there is only one fix
"repealing this hateful act."
I cant. Its against my religion. Americans tend to handle religious objections with care, personally and politically. When a guest says, for example, that he cant eat the food being served because its not kosher or halal, the host usually hastens to find an alternative. And when people resist following a law on the basis of faith, the government and the courts may try to accommodate them. Its an American legacy that dates back to before the founding, when some of the original colonies were set up as havens for religious dissenters. Under the banner of belief, Quakers and Mennonites in the 18th century won the right not to join state militias. The first conscientious objectors were religious objectors, and from there, the category expanded to include moral opponents of war. The same pattern holds for home-schoolers. It was an Amish father, not a hippie mother, who first got the Supreme Courts permission to take his children out of school in 1972, based on his religious commitment to life aloof from the world, as the justices respectfully put it.
Making exceptions to the law for people of faith has become part of the American definition of religious tolerance, part of our ethos of live and let live. It has also helped keep the peace in a polyglot nation. In France, its illegal for a Muslim woman to wear a head scarf at a public school. In the United States, its illegal for a clothing store to refuse to hire a Muslim woman because she wore a head scarf to her job interview. When the Supreme Court issued that ruling last month, eight of nine justices agreed that Samantha Elauf, who lost out on a job at Abercrombie Kids because of a companywide policy banning head coverings, was asking for favored treatment to which she was entitled by federal employment law. This is really easy, Justice Antonin Scalia said, announcing the decision from the bench.
And yet weve arrived at an unfortunate impasse over the meaning of religious liberty. Unlike in earlier eras, when religious objections let the faithful separate themselves from institutions they felt they could not support, many conservatives now deploy the phrase as a way of excluding other people. Take the furious outcry that erupted in response to the Supreme Courts 5-to-4 decision to make same-sex marriage legal in every state. Conservative pushback began with the dissenting justices: Clarence Thomas warned of potentially ruinous consequences for religious liberty. Some Republican officeholders rushed to throw up whatever shield they could for people of faith. Two states have declared that county clerks may refrain from issuing marriage licenses if they dont want to give them to gay couples as a matter of conscience. Bakers, photographers and florists and adoption agencies and landlords who cite their religion when refusing to serve gay couples won assurances like this one from Greg Abbott, governor of Texas: No Texan is required by the Supreme Courts decision to act contrary to his or her religious beliefs regarding marriage.
The same-sex-marriage resisters hope to capitalize on a recent expansion of religious liberties, in another big case about modern-day sexual norms. In a divisive 5-to-4 ruling last year, the Supreme Court extended to a company, and not just to individuals, the right to mount a religious objection to a law. The craft-store chain Hobby Lobby, which is owned by evangelicals, refused to pay for certain forms of birth control for its female employees, as the Affordable Care Act requires. The owners argued that providing health insurance that covered emergency contraception and IUDs offended their evangelical beliefs, saying these methods induce abortions (by taking effect after fertilization). Hobby Lobby had little scientific support for that assertion. By contrast, in defending the contraception mandate, the Obama administration could cite the consensus medical view that providing a variety of birth-control methods benefits womens health. Nonetheless, the court sided with Hobby Lobby and its sense of conscience.
The courts decision led to a burst of feminist outrage, but Hobby Lobby didnt face a sustained boycott. And so it was surprising when another push for religious objection crashed into a wall of public condemnation earlier this year. Legislators in Indiana and Arkansas expected a smooth ride for their versions of a bill called the Religious Freedom Restoration Act. The first law by that name was passed by Congress in 1993 by huge, bipartisan margins. R.F.R.A. established a balancing test that remains in effect: When someone complains that a federal law substantially burdens his or her free exercise of religion, the government must show that it has a compelling interest in applying that law.
The R.F.R.A.s proposed in Indiana and Arkansas were more expansive: They would have allowed people and corporations to bring religious-liberty claims against one another, as well as the government. But that change didnt really explain why Indiana and Arkansas found themselves on the wrong side of the culture wars; the context did. The new religious-liberty bills appeared to be shielding businesses that didnt want to serve gay couples, who had recently won the right to marry in Indiana. If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no, Crystal OConnor, an owner of Memories Pizza in Walkerton, Ind., told a local news station. This time, the boycott materialized, and Memories Pizza temporarily shut its doors (supporters also raised more than $800,000 on the owners behalf). When major companies threatened to pull up stakes in Indiana and Arkansas, the states retreated, altering their religious-freedom bills.
Following the Supreme Courts marriage ruling, religious objections to serving gay couples are mounting in more states. Invoking religious liberty in this way presents special concerns by prolonging social conflict, according to a recent article by two law professors, Reva B. Siegel of Yale and Douglas NeJaime now of U.C.L.A. School of Law. They point to the aftermath of Roe v. Wade: After the Supreme Court ruling legalized abortion throughout the country, Congress and state legislatures ensured that a doctor, nurse or other health care professional could refuse to participate in providing an abortion as a matter of conscience. Over the decades, these conscience clauses expanded in some states to include counseling, referral and pharmaceutical services, allowing people who fill prescriptions, for example, to exert a form of social control in the name of their own religious freedom.
The muscle of the conservative Christian movement, Siegel and NeJaime argue, enhances its power to demean. Women who have been refused abortion services report feeling judged and mortified. Gay couples turned away by wedding vendors say the same. The phrase religious liberty has become an overused talisman, the Indiana University law professor Steve Sanders told me. Most of the invocations lately have nothing to do with actual infringements of free exercise. Theyre about political and cultural dissent from gay rights.
Religious liberty has always had something to with 2 things. History and the Bible for Christians. On segregation you could pull up history...
All of this is making longtime proponents of religious liberty nervous. Douglas Laycock, a law professor at the University of Virginia, has helped write state religious freedom bills and supported the ones that foundered in Indiana and Arkansas. But in an article last year, he issued a warning to evangelical leaders. It is a risky step to interfere with the most intimate details of other peoples lives while loudly claiming liberty for yourself, Laycock wrote. If you stand in the way of a revolution and lose, there will be consequences.
Refusing to serve customers has an ugly history. A half-century ago, the civil rights movement held lunch-counter sit-ins to protest Jim Crow. No one succeeded then in claiming a God-given right to refuse to serve black customers. Throughout the South, businesses open to the public became open to all. Today, in the name of religious liberty, there is robust Southern opposition to same-sex marriage. But supporters say the analogy to the exclusions of Jim Crow is inapt, because racial segregation was never central to Christian teaching the way traditional marriage has been. They also correctly point out that strong national laws protect against discrimination on the basis of race, but not against discrimination on the basis of sexual orientation. In many states, in the South and elsewhere, a business or a landlord doesnt need a special faith-based reason for turning away a gay client or tenant. Theyre simply free to do so.
Given the speed with which public support for same-sex marriage is growing, gay people may win other rights against discrimination. But what about private religious schools and social-service organizations? Hard questions will arise, Chief Justice John Roberts predicted in his dissent from the same-sex marriage ruling, when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex couples.
In the Senate and the House of Representatives, dozens of Republicans quickly signed on to a bill that would protect the tax-exempt status of a religious organization in such a situation and prevent any government action against a business that refused to serve a gay couple. On both sides of this fight, tolerance no longer seems to be the word of the day. The religious resisters say, It doesnt matter if you can have the wedding you want, because you shouldnt be getting married anyway,? Laycock said over the phone last week. The gay rights people answer, It doesnt matter if you violate your conscience, because youre just talking to your imaginary friend.? When basic values and rights collide, usually somebody wins and somebody loses. It becomes difficult to find mutual compassion, even if that would be the godly thing to do.
Correction: July 26, 2015
An article on July 12 about religion and American law
misidentified the academic affiliation of Douglas NeJaime,
who was an author of a paper on religion and law. He is a
professor at the School of Law at the University of
California, Los Angeles, not the University of California,
Irvine, where he taught at the time the paper was
Seventeen states have introduced legislation this year regarding the creation of, or alteration to, a state religious freedom law. Currently, 21 states have Religious Freedom Restoration Acts (RFRAs).
Oklahoma, South Carolina and Texas currently have a RFRA, but have introduced legislation this year to amend or supplement their law. Colorado, Georgia, Hawaii, Maine, Michigan, Montana, Nevada, North Carolina, South Dakota, Utah, West Virginia and Wyoming are looking to add a RFRA or similar law to their state's laws. Arkansas and Indiana have enacted legislation on this topic in 2015, and Mississippi passed legislation in 2014.
Below is a list of legislation with final disposition listed alongside the bill when applicable. Enacted legislation is in bold.
ARKANSAS: In April, the House recalled from the Governors desk a bill that would prohibit the government from burdening a persons exercise of religion, unless the state can demonstrate that the policy is essential to a compelling governmental interest and that it is designed to be the least restrictive on the exercise of religion. The legislature allowed the measure to die when they adjourned their session.
GEORGIA: In March, the Senate approved a bill that would prohibit the government from substantially burdening a persons exercise of religion, unless the state can demonstrate that the policy represents a compelling governmental interest and that it is designed to be the least restrictive on the exercise of religion. The measure awaits action in the House.
(ENACTED) INDIANA: In March, the House passed and Gov. Mike Pence (R) approved a measure that would prohibit the government from substantially burdening a persons exercise of religion, unless the state can demonstrate that the policy represents a compelling governmental interest and that it is designed to be the least restrictive on the exercise of religion. Following controversy that the measure could be used to discriminate, the Governor sent the bill back to the legislature for clarification and amendment.
WYOMING: In February, the Senate approved a measure that
would prohibit the government from substantially
burdening a persons exercise of religion unless
the state can demonstrate that the policy represents a
compelling governmental interest and that it is
designed to be the "least restrictive" on the exercise of
religion. The measure awaits action by the Senate.
Amy ButlerI think most Americans, even non-religious Americans, are on board with the idea of religious liberty in the abstract. But like so many of the things we hold dear, what sounds great in theory becomes deeply complicated when the rights we cling to individually begin to conflict.
All of us have been watching news reports of contentious legal claims unfolding almost every day across America. From North Carolina to Mississippi and lots of other places in between, the stories vary in theme from contraception mandates to wedding cakes to who gets to use the bathroom where.
So perhaps religious liberty was on my mind a few weeks ago in the abstract, of course when I found myself traveling from Germany to New York. I boarded a huge airliner with hundreds of other people and settled in for an eight-hour trans-Atlantic flight. Exhausted after a long week, before I got on the plane I stood in line at the customer service desk and purchased an upgrade to a special seat in premium economy. It was more money than I wanted to spend, but at least I had a little more room to stretch my legs, and the seat was on the bulkhead!
As I found my seat I began to notice that almost all my fellow passengers were men, all dressed alike, obviously part of a very observant religious group. The man sitting next to me, in fact, was a member of the group. I said hello and began settling in for the flight. But just as Id begun buckling my seat belt, my seat partner signaled for the flight attendant and explained to him that I would need to be moved to another seat; his religious freedom, he said, was violated by my presence, as his religion does not allow him to sit next to a woman who is not his wife.
I had so many thoughts in that moment.
Over the course of the flight several other issues came up in the cabin, each resulting in loud disagreements about religious freedom; they were issues related to other folks and their seatmates, food that didnt meet religious standards, and the need to deal with solely male flight attendants. The end result was a noisy, contentious, and anxiety-ridden eight hours. Definitely not worth the upgrade fee, let me tell you.
It was such a strange turnabout, a moment when the abstract suddenly became painfully personal. I could see the leader of the religious group just a few seats over, and I wanted to go talk to him and say something like, Listen, I get it. Im a person of faith too, and I understand that it can be really difficult to hold beliefs that are counter to the culture around you. But trying to force everybody around you to conform to your view of the world is just as bad as the rest of the world trying to force you to conform to it.
Religious freedom is just that: freedom. Note that we dont call it religious comfort. In other words, yes, government should protect my right to practice my religion, but its not societys obligation to make that practice easy or carefree. If your faith prevents you from sitting on an airplane next to a woman who isnt your wife, then move to another seat. If your faith tells you you cant go to the same bathroom with some people, then figure out how to order your life so that you use the bathroom in a place that seems appropriate for you. If your faith tells you you cant sell wedding cakes to certain people, dont go into the business of selling wedding cakes.
Im a Baptist; Im all for religious liberty. Many of my religious forebears have died to defend it, in fact. But the behavior I saw on the plane last week was not a legitimate demand for religious liberty, and neither are laws dictating where people can use the bathroom and whom I can refuse to serve in my business. All of those claims, in fact, make a mockery of the sacrifice of so many by twisting the ideals of religious liberty and using them to discriminate against others.
Faith requires sacrifice. And, frankly, if our faith causes us to feel so much conviction about the issues confronting us, then perhaps we should find a way to manage the inconvenience of making that sacrifice instead of trampling the rights of others.
Fanaticism consists in redoubling your efforts when you have forgotten your aim. - George Santayana
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