The debate over religious freedom in America has reached absurd levels of acrimony and paranoia. The most recent salvo: political and economic leaders are threatening and attacking Indiana, where Governor Mike Pence has signed into state law a version of the Religious Freedom Restoration Act (RFRA). RFRA laws, in general, allow Americans to use a religious liberty defense in court cases over government laws that infringe on the free exercise of religion. The federal RFRA became law in 1993, and twenty states (including Indiana) now have their own version on the books. Others provide RFRA-style protections in their state constitutions.
Indiana joining this large club isn’t news, right? Wrong. Apple CEO Tim Cook wrote a Washington Post op-ed calling the law “very dangerous” and promising to oppose it or ones like it. The CEO of the cloud computing company Sales Force threatened “slow rolling of economic sanctions” against the state if the law remains (yet Sales Force does business in China). Connecticut Governor Dan Malloy will cancel state-funded trips to Indiana as a result (even though Connecticut is one of the 20 states with a RFRA law). Hilary Clinton tweeted critically about the law (though her husband signed the 1993 federal version). Many news outlets reflexively refer to the bill as “anti-gay” and to religious liberty itself with dubious scare quotes.
Yet there is little if any evidence that RFRA laws have enabled discrimination against gays or same-sex couples. RFRA defenses have been used, for example, to protect a Native American who owned religiously important eagle feathers without a permit. The government seized the feathers but was forced to return them. RFRA allowed another Native American child to keep his hair long despite school rules about keeping hair to a certain length (the ACLU gave his family an award).
So why the uproar? Much of it is white noise generated by ignorance and misinformation about the bill. But the more knowledgable and reasonable critics of Indiana’s RFRA believe that this law is different than others that currently exist at the state and federal level. It allows companies as well as individuals to use the religious liberty defense, and it allows the religious liberty defense in private suits that don’t involve the government. In a famous case in New Mexico, for example, a customer sued a photographer for refusing to photograph her same-sex wedding. The customer won. In that case, the court ruled that the defendant couldn’t use RFRA as a defense because the suit did not involve the government. That wouldn’t happen in Indiana, where the defense is allowed in private suits.
But even here, the fear is overblown. It’s certainly true that Indiana’s RFRA would allow a business to use the religious liberty defense to protect a decision to not serve gay weddings (among many, many other things not related to sex or marriage at all). But even if the claimants can use a RFRA defense in more instances under the Indiana law, they are by no means guaranteed to win their case—and current jurisprudence seems unfriendly to to them. Far from introducing a new Jim Crow, as some of the more overwrought critics would have you believe, RFRA laws may not do as much to protect religious business owners as many supporters of the law would want. Moreover, such cases are rarely brought anyway—and gay customers aren’t turned away from businesses at any noticeable rate, despite the fact that it would be legal in that state for business to do so.
In a piece on the 2013 Supreme Court cases on gay marriage, WRM noted that, amid the movement toward state recognition of same-sex couples, dissenters’ rights ought to be respected:
Some gay rights advocates will believe that society needs to punish and repress these beliefs. Just as we don’t let segregated schools enjoy tax benefits and deny racists the “right” to discriminate in hiring and promoting, shouldn’t we hand out the same treatment to those backward bigots who refuse to move with the times?
At Via Meadia, we think that’s wrong. […]
There are going to be a lot of issues of this kind, and we predict a bright future for discrimination and First Amendment attorneys. But it seems to us overall that the best way to handle these issues is to go slow and to leave room for reflection and compromise. America, thankfully, is a pluralistic society in which many people have different points of view. It’s more important that we find a way to get along than that we reach a consensus on every divisive social issue. In recognizing and protecting the rights of sexual minorities, we should not forget to honor and respect the rights of religious dissenters as well.
This spirit of reflection and compromise is absent from the heated reactions to the Indiana law, and the often inaccurate accounts of what the law is and would do. Responsible reporting and debate on this topic is an important step toward protecting American pluralism, but, sadly, we aren’t getting it.