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RFRA Ruh Roh
The RFRA Debate Is Still Up in the Air

Judging by the high velocity backpedaling we’ve seen on Arkansas and Indiana’s religious freed (RFRA) bills, anyone might be forgiven for thinking that RFRA advocates have lost the issue in the court of public opinion. But at Bloomberg, Dave Weigel argues that the Democratic stance on RFRA is at odds with voters’ expressed preferences:

It’s now expected for Democrats to denounce RFRAs, just as large corporations are denouncing them. In doing so, all of the critics are on the wrong side of public polling. According to a March edition of the Marist poll, 54 percent of Americans agreed with  “allowing First Amendment religious liberty protection or exemptions for faith based organizations and individuals even when it conflicts with government laws.” By a two-point margin, 47-45, even a plurality of Democratic voters agreed with that.

The margins were even larger in opposition to laws that proposed “penalties or fines for individuals who refuse to provide wedding-related services to same sex couples even if their refusal is based on their religious beliefs.”

This would not, of course, be the first time that Democrats have gone all-in on a position that’s to the left of the American people. In abortion, for example, the Democrats are out-of-step with an electorate that supports by a plurality the kind of 20-week abortion ban that was passed in Texas. But at Vox, Matt Yglesias takes issue with Weigel’s conclusion, arguing that it all depends on how you phrase the question:

Consider a June 2014 Public Religion Research Institute poll that asked, “Do you think that a small-business owner in your state should be allowed to refuse to provide products or services to individuals because they are gay or lesbian if it violates their religious beliefs?” Eighty percent of respondents said no.

But a September 2014 Pew poll showed a much closer split. That poll asked, “If a business provides wedding services, such as catering or flowers, should it be allowed to refuse those services to same-sex couples for religious reasons, or required to provide those services as it would to all other customers.”

Forty-seven percent said they should be allowed to refuse, and 49 percent said they should not be allowed to refuse.

Yglesias believes that, “As the debate moves from an abstract one about religious freedom to a more concrete one about gay rights, the Democrats are going to find themselves on stronger and stronger footing.” The problem is that the polls Yglesias uses are both based on faulty premises. RFRA, in the first place, doesn’t “allow” anyone to do anything, per se. It merely lets individuals or companies use a religious liberty defense in court. Presumably if people became aware RFRA is only about the kind of defenses allowed in court, the margins would shift even more.

Moreover, the first case Yglesias cites—that of business owners refusing service strictly because someone is gay—isn’t actually at issue anywhere. That distinction is, of course, important. In the wake of Indiana’s RFRA passage, a local media station interviewed a pizza shop owner who said he would not serve pizza at a same-sex wedding. According to Time Magazine, “The owners said they would serve anybody who came into the restaurant regardless of sexual orientation, but drew the line at weddings.” (Wrathful hordes nonetheless still descended).

It may be harder and harder for Americans to grasp the importance of these distinctions in light of the demagoguery that surrounds this issue. But even by Yglesias’ poll, when you restrict the question to the relevant issue of weddings, the margins are very close. It seems that this issue is still up in the air.

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  • qet

    Wrathful hordes is exactly right.

  • Andrew Allison

    The RFRA debate is not up in the air. Twenty States have adopted their own versions of a Federal law enacted over a decade ago. The vitriol directed against the latest one is misdirected. The issue is willingness to acknowledge a different point of view, something which has become, to the detriment of the Republic, become anathema to so-called “progressives”.

    • f1b0nacc1

      Actually I suspect that Indiana is a test case for the Left. If they win here (looks like they have), then the stage is set to go after those other 19 states, and eventually the Federal statue as well. In addition, it is VERY likely that this is being used as the thin edge of the wedge to push for a general gays-and-trannies protected class status, and we know where that leads.

      • FriendlyGoat

        The original federal RFRA was passed in part to respond to such ridiculousness as a federal agency telling a native American tribe that it could not possess eagle feathers for tribal religious use because eagles were a protected specie.
        Government had gone over a silly line and both Congress and Bill Clinton agreed in 1993 that government interests would need to be much more compelling than that to justify interference with a religion. After a decision in 1997 that the federal RFRA did not apply to state governments, many states passed their own versions on the rationale of not letting state governments go silly any more than the Feds were prohibited from being silly under RFRA.

        Not until now have any states sought to extend these laws to disputes between persons or corporations as was done in Indiana and Arkansas. Now that both have been amended to ostensibly nix the idea of vendors discriminating against gay weddings (one of the main drivers of these odd extended provisions in the first place), we can only wait to see what OTHER disputes are brought in these states. I have no idea what they might be, but I predict that religious legal defenses between private entities are an unpredictable can of worms. We’ll all wait to see what hits the news next. This isn’t only about GLBT people, as you imagine “going after” everyone in sight, as that community has little problem with the original RFRA’s which applied to governments’ powers.

        • f1b0nacc1

          Since the overwhelming majority of RFRA actions have been prisoners (almost always Moslems) using the law to obtain wider latitude for the practice of their religion, it isn’t too difficult to imagine where this will go. Note that one of your own personal boogeymen (Scalia) has objected to RFRA because it can be used for individuals to evade what he felt was the rule of law.
          Note that in none of these cases is this strictly true. RFRA isn’t a ‘get out of jail card’ for bad actors, it only states that when government (or private parties using the force of government, such as a gay couple suing under a civil rights statue) takes action that will materially affect the free exercise of religion, that it must meet a strict scrutiny standard to do so. That is that it must not only demonstrate that it has a compelling interest in doing so, but that no alternative method of intervention would be viable. Given the centrality of first amendment rights, this doesn’t strike me as an unreasonable requirement. There are already (as Andrew points out) 19 other state RFRAs, and a Federal RFRA in place for 22 years, and I haven’t seen any sort of breakdown in society. That such laws will be used by all sorts of people is in fact normal and quite reasonable, I have no trouble with people I disagree with seeking protection of their right of free expression and faith. You, on the other hand….
          As for the LGBTXYZ123ABC hysterics suggesting that this is one step away from rounding them up and sending them to camps, it is difficult to imagine how most businesses would even care, much less bother about such silliness. Businesses that voluntarily choose to avoid customers (or alienate others) wont’ survive long, which is why one of the strongest opponents of the current RFRA law is Indiana’s business community, and it opposed it long before the debate became a big issue. I don’t share the position of those few that feel providing services to a Gay couple is some sort of problem, but that is their choice, and I must (as a member of civilized society) respect it. I also respect the right of a Moslem prisoner to be free of unreasonable burdens on his right to worship as he chooses, much as I don’t care for the faith myself. That is called ‘tolerance’ and it is quite a useful tool for surviving as a free society.

          • FriendlyGoat

            Like I said, I really have no idea what OTHER NEW issues will arise in Indiana and Arkansas as a result of their RFRA’s extended to private parties. I’m going to wait until we hear about them, if any, before further opining on those laws. Scalia may have a point about questionable attempted evasion of all kinds of things—–or not. We’ll see.

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