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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