A debate on the implications of Indiana’s Religious Freedom Restoration Act

Opinion by Ben Kaufman
March 30, 2015, 10:31 p.m.

Over break, Indiana’s governor signed a law protecting citizens from having their religious practices be “substantially burdened” by government action. In laymen’s terms, this means that Indianans accused of anti-gay discrimination now have legislative backing behind a plea of religious necessity.

Of all the bad ideas to have ever blossomed, this one, to quote the columnist Jake Novak, “fell off the stupid tree and hit every branch on the way down.” But given how inherently hateful the ideology behind the law is, to call it only dumb is to assess it pretty optimistically. This law is patently absurd, a hateful dying gasp of an ideology that Americans have realized is thoroughly indefensible. And that assessment is hardly a left-leaning one: From the army of concerned citizens and celebrities who made #BoycottIndiana the top trending hashtag on Twitter to the tens of thousands of Indianans who have taken to the street to showcase their outrage, it’s clear that the American mainstream stands strongly against these new rules.

Indiana’s law is based on two equally ridiculous premises: that religion is under siege in the U.S. and that the invisible hand of the market is capable of protecting minority rights. It’s as laughable as it is terrifying that laws could continue to be made on the backs of such obvious fallacies, let alone that they remain such sacred cornerstones of conservative dogma.

To begin, despite Fox’s best efforts to insist so, there simply isn’t a war in our nation against religion. It’s just not there. We’ve surely become a more secular nation – religious membership and attendance are each at all time lows, and many regulations connected to religious ideology such as the Defense of Marriage Act and sodomy laws have been struck down or repealed. But to paint this as the effect of some conspiracy against faith, to attribute this to the (Bill) O’Reillian image of a struggle between “secular progressives” and terrified, hard-working “traditionalists,” is ridiculous. Nobody’s stopping you from being religious.

To accuse people who say “Happy Holidays” instead of “Merry Christmas” of attacking religious freedom (as one friend of Fox News recently did) is, frankly, to spit in the faces of people actually dying worldwide in the name of their faith. If the comparison seems too far, it’s only because the Right’s categorization of itself as religiously victimized is exactly that. Imagine the experience of a Syrian Christian living under the looming threat of ISIS, and then tell me that American Christians are truly being persecuted. The illusion that these two things are in any way equal is precisely what Indiana’s new law – tellingly titled the Religious Freedom Restoration Act – is built on. The law’s conception represents a stunning height of brashness, an embrace of the blissfully, insultingly apathetic gall necessary to equate true persecution with the demand that employers not actively discriminate a group that has already faced so much degradation.

As Indiana’s governor recently underscored by saying, “this is not about discrimination, this is about empowering people to confront government overreach,” the second pillar that this law rests on is the idea that the free market will necessarily weed out potential homophobia in Indiana. Purportedly discriminatory employers, this worldview contents, would quickly be put out of business by locals who choose to take their business elsewhere, leaving only the good guys without government intervention.

I don’t mean to say that this isn’t true in this specific case; with more than 50 percent of Americans now supporting marriage equality, “This Business Serves Everyone” stickers popping up across Indiana and a proper social media infrastructure clearly at the ready to rain hell upon identified offenders, such assumptions may be accurate. But to say that the free market can be trusted to protect minority rights is as ludicrous as it is dangerous. What if this were a different time or a different group; what if the year were 1975, only two years after homosexuality was de-listed from being a mental disorder, and such a law were passed? Employment discrimination against gays probably could have gone off without much hubbub, and the minority – a group whose protection is a central aim of the Constitution – would have been left to face the tyranny of the majority. Indeed, unless a minority faction has everyone else’s outspoken sympathy, such free-market conceptions serve only to further marginalize those outside of the mainstream.

This is exactly why the 14th Amendment and its Equal Protection Clause were passed, why Civil Rights laws banning discrimination in employment and a number of other fields were signed into law, and why the Supreme Court has upheld the Constitutional imperative toward minority protection on so many occasions. Simply leaving the rights of the have-nots to market forces is inexcusable in its unpredictability. The government as a whole and anti-discrimination laws specifically exist so that this doesn’t have to be done. Attempts to roll them back, especially when based such flimsy premises, are nothing but inexcusable.

Indiana’s Religious Freedom Restoration Act is an insult to those who believe in the beauty and unifying power of religion. It is a slur padded in a fiction about religious persecution and manufactured cries about government overreach. It is childish, hateful and heinous, and it has no place in a civilized society.

Contact Ben Kaufman at bkauf614 ‘at’ stanford.edu.

Way back in 1993 the very first Religious Freedom Restoration Act was signed into law by Bill Clinton after passing both houses of Congress by huge majorities. It was intended to block or inhibit a law’s burden on one’s religious duties except in the cases of “compelling government interest”, and served as a more legalistic, though still federal, expression of our First Amendment freedoms. Keep that magic word in mind: federal. Following Washington’s example, many of the states themselves then chose similar courses, adopting their own nearly identical versions of the federal RFRA. On Thursday Indiana became the 31st to do so when governor Mike Pence signed S.B. 568 into effect.

But not too many people are happy about it. Though the text of the law is remarkably similar to both the early federal law and the 30 other state legislations, it still seems to have riled up a whole crowd of protesters who believe that sexual discrimination is right around the corner. The law’s proponents only point to the 1997 Supreme Court case of City of Borne v. Flores, which determined that the federal RFRA did not always apply to state and local laws. Hence, the flurry of state legislation in the past decade as sort of a base-covering procedure, to which now Indiana is joining. This is not a new concept, regardless of the outcry.

For this law says nothing about private practice. It says nothing about the operation of business by individuals or corporations. The text specifically pinpoints government interest, and lists “state action” as being “the implementation or application of a state or local law or policy” or “the taking of any other action by the state.” The only way its passage could deal with an issue of discrimination would be a) if a secondary law also existed in Indiana that prevented any kind of favoritism and b) a person violated it on religious grounds. Then, and only then, could the RFRA come into effect, and still only if a “compelling governmental interest” in ending this discrimination could be proven.

The problem is that Indiana has no such secondary law. The Title II portion of the Civil Rights Act of 1964 prevents discrimination in public accommodations (restaurants, retail stores and service facilities) based only off of race, color, religion or national origin. Through the use of the Commerce Clause, Congress was able to apply this Act from the federal to the state level. Since then, several of the blue-leaning states have extended this protection to cover sexual orientation and gender identity as well. However, Indiana has not. If a business owner in Indiana then refuses to provide a service because of religious belief, no violation of state law has in fact occurred. RFRA wouldn’t even apply because the state government would have no legal jurisdiction in the matter.

But what about the blue-leaning states? Here, RFRA serves as a kind of check on the government’s possible sphere of influence, limiting such only to cases where a “compelling governmental interest” actually exists. For instance, in the infamous Oregon bakery fiasco the 22 other bakeries in the greater Portland area that might service homosexual weddings might have reduced the reasons for prosecution to less than compelling. In a similar way, the $150,000 fine levied on Sweet Cakes (the bakery in question) possibly wouldn’t have counted as a “least restrictive means” of furthering this interest of equal treatment.

The RFRAs don’t only signify an allowable influence of religious freedom on business; they celebrate the triumph of a free-market society over the petty interventions of government. In essence, they allow the principles of capitalism to motivate and encourage fairness while simultaneously curbing the influence of the state. Why bother with legally enforced discrimination statutes when the power of social media and instantaneous information can make or break a new business overnight? Nowadays, if a company chooses for whatever reason to refuse its services to some of its patrons, to celebrate or mock a specific ideology, or to laud a certain belief, there will be backlash. This backlash may be positive, e.g. the massive outpouring of support present at Chick-fil-A’s appreciation day, or negative, e.g. the equally massive outburst of vitriol against its president’s remarks. Businesses are coming to the rather obvious realization that any of their principles other than purely business ones will offend or please certain interest groups. And Indiana definitely doesn’t want the NCAA to pack up and leave.

Hence, the greatest capitalist innovation of our time; the At-Will contract.

At-Will is a locked door. It’s a hole in the wall through which instructions and nothing else are passed. Initially a hiring strategy, a business that employs using At-Will contracts can hire and fire at anytime for any reason. You could be employed for the color of your hair and terminated because you prefer tea to coffee, but you will never know of these reasons and cannot sue based on them. It’s the perfect solution to the requirements and statutes that years of zealous anti-discrimination have given us, and it may solve these service issues as well. A company that not only employs but serves using At-Will contracts could theoretically refuse service to anyone for any reason; if a patron walks through its door, the fact of their entry would constitute an unspoken agreement with this contract (provided the shop advertised its presence).

And the nice thing about At-Will is that it gives no room for the rampant misinterpretation RFRA has garnered. While celebrities re-tweet outraged remarks about a law that already exists in half the country and businesses like Angie’s List and Salesforce make dark threats if a bill sourced from a 20-year old piece of federal legislation is not immediately repealed, the rest of us shake our heads in puzzlement. Any state RFRA is simply the First Amendment applied to state governments, we say, existing purely as a result of our country’s federalism. What exactly are they condemning?

Contact Wyatt Smitherman at wtsmith ‘at’ stanford.edu. 

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