Facing pressure from business interests and high-profile critics, the governors of Indiana and Arkansas have called for changes to religious freedom laws recently passed in their states. The two states had each passed versions of the Religious Freedom Restoration Act, a federal law that has allowed Americans to use religious liberty as a defense in court against restrictions on religious practice. RFRA has been federal law since 1993, but both states are only now passing their own versions of it. Opposition was swift and heated, fueled by the wars over same-sex marriage. Some believe that the new state RFRAs are more expansive than the federal law and that they would allow companies to refuse to serve gay customers at, for example, a restaurant.
These fears are massively overblown in all sorts of ways—not least because the cases at issue involve serving at or for gay weddings, not serving people in restaurants. Moreover, the law only allows companies to bring a RFRA defense in court (they could still lose their cases). Even Vox ran a piece that pointed out why the paranoid predictions of the law’s more intemperate opponents are unrealistic—along with an interview that points out why the federal RFRA and the Indiana RFRA are not all that different.
But the opposition nonetheless looks poised to win the day. The NYT reports that both Indiana Governor Mike Pence and Arkansas Governor Asa Hutchinson want to change their new RFRA laws to make clear in some way that companies don’t have the right to “discriminate against anyone” (Pence) or that the state is a “place of tolerance” (Hutchinson). In both states, big companies who opposed the laws—some of whom do business in places like Russia and China—put pressure on the governors to amend them:
Several businesses, including the state’s largest employer, Walmart, as well as the Little Rock Chamber of Commerce, the Arkansas Municipal League and other civic groups have come out against the [Arkansas] legislation.
Mr. Hutchinson’s announcement [to amend or counteract his state’s RFRA] comes a day after his counterpart in Indiana, Mike Pence, found himself in a tenuous political predicament as he sought to satisfy both the business interests that have threatened to punish the state for its new religious freedom law and local conservatives who fought for the measure and do not want to see it diluted.
Governor Pence acknowledged that the law, which passed last week, had become a threat to the state’s reputation and economy, with companies and organizations signaling that they would respond by avoiding Indiana. Mr. Pence said he had been on the phone with business leaders from around the country, adding, “We want to make it clear that Indiana’s open for business.”
The backtracking in these two states—both run by Republican governors, both outside the liberal Northeast—will stoke even further the anxieties of religious Americans, who see RFRA laws as a small, last-ditch compromise on religious freedom in the wake of the massive changes in cultural norms reshaping the country. That means that the discourse in America around these is set to get even more bitter and acrimonious—what Ben Domenech calls the culture war 4.0. A spirit of compromise on the part of same-sex marriage supporters, who have gained massive cultural and legal ground, could help create a kind of ceasefire, but that is apparently less and less on offer, and that means things might only get uglier.