Last week the state of Indiana made the national news by passing a law whose sponsors named it “The Religious Freedom Restoration Act.” Opponents of the claim that this name is misleading, both because it does little to promote religious freedom and because it is significantly different from the US federal law known by the same name and from the laws modeled on that federal law that are on the books in many other states. Because the law is expected to protect businesses that refuse to serve members of sexual minority groups, advocates of the rights of such groups have protested vigorously against it.
The two things about this controversy I’ve read that I’ve found most helpful are an essay posted on Facebook by lawyer Carolyn Homer Thomas and a blog post by Eve Tushnet. As the weeks pass, I’ll probably see good things in print, but for now the story is fresh enough that the internet is the richest source.
Carolyn Homer Thomas writes that Indiana’s law differs from the federal law in two key ways:
First, SB 101 expressly recognizes that for-profit businesses which “exercise practices that are compelled or limited by a system of religious belief held by…the individuals…who have control and substantial ownership of the entity” qualify for religious exemptions. This means that there is NO Indiana regulation that a business cannot theoretically trump by saying their religion forbids compliance. What’s rightfully getting the most attention (because of the gay rights movement) is the risk that businesses will try to trump non-discrimination and employment laws. This is because, until the Hobby Lobby case, most people had understood the earlier federal and state RFRAs to only protect individuals or non-profit religious institutions, like churches and charities. But the Indiana RFRA now allows even for-profit corporations to exercise religion.
“This means that there is NO Indiana regulation that a business cannot theoretically trump by saying their religion forbids compliance.” A statute that, interpreted by its plain language, would dismantle the entire civil law system of one of the fifty states would seem to pose a threat to every law-abiding citizen of that state. I can see that members of sexual minority groups are among those who are especially vulnerable that threat, and so it is reasonable that they should be among the major focuses of attention as Hoosiers* try to figure out how to get themselves out of the mess their state legislature and governor have landed them in.
Carolyn Homer Thomas goes on to identify another major problem with the Indiana statute:
Second – this is the most fascinating aspect of the whole thing to me as a religion law geek – SB 101 only protects a business who is actively “exercising” a practice that is “compelled or limited by” religious belief. This means that the religious belief cannot just be a preference — it has to be theologically mandated. So, a business who suddenly changes course, or comes up with a fairly weak theological reason for its action? That is a ground in court to reject their exemption. By contrast, SB 101 protects ANY “exercise of religion, whether or not compelled by, or central to, a system of religious belief” for individuals and non-profits. So it will be harder for businesses to get exemptions than individuals. Indiana will require a much higher showing of religious conflict before it will protect businesses. (I am going to bracket the fact that this difference presents its own Constitutional problems – courts aren’t supposed to, under the Establishment Clause, evaluate theology.)
Giving state courts the power to decide what does and does not count as a worthwhile religious belief would seem to be a pretty big drawback in something called “the Religious Freedom Restoration Act.”
Eve Tushnet, as a conservative Roman Catholic and an out (albeit celibate) lesbian, has a unique perspective on this issue. Because of her religious beliefs, she understands the scruples of those whose consciences won’t allow them to participate in same-sex weddings:
1. Cooking is an art, cakes are art, compelled creation of beauty is compelled speech. I feel like the denial that cakery is/should be expressive, that food bears meaning, is somehow Gnostic and class-biased (or sexist? if your grandma could do it, it must not be art?), but maybe that’s self-parody on my part. Anyway beauty + meaning, to me, pretty clearly = art. And photography is even more obviously art, right?
At the same time, because of her sexuality, she also understands dimensions of the issue to which other social conservatives are blind:
2. Still… I wonder how different this debate would look if more gay people felt confident that Christians know how common discrimination, harassment, and violence are in our lives. I mean I didn’t really know this myself for a long time. I was very sheltered. The past few years, in which I’ve gotten to know lots of gay people from different backgrounds (mostly Christian, mostly celibate, it turns out this doesn’t protect you–not that any of my friends asked it to), have been eye-opening for me.
And quite often I find straight people are even more surprised than I was to hear about the frequency and sordid creativity of anti-gay acts. I hope I’m remembering this right, but at a retreat I was at, the leader asked how many of the non-straight participants had either experienced violence as a result of sexual orientation ourselves, or had close friends who had experienced this violence. And I think all of us had. (Close friends, in my case.) And the straight people were shocked. When I tell this story now, people’s eyes widen–I mean, straight people’s eyes widen.
The support major corporations and prominent media figures have given to the protests against Indiana’s law has convinced social conservatives like Rod Dreher that America’s power elite is solidly in favor of the rights of sexual minorities, and that he and his fellow dissenters are headed for a future on the margins of society. Mr Dreher writes, “On this issue, the left has the media, the academy, much of the legal profession, and corporate America on its side. That’s a powerful coalition. It is the Establishment. And you will not escape its view.” At The Federalist, Robert Tracinski goes even further, declaring that “The Left Has No Concept of Freedom,” and that those leading the charge against the Indiana law portends a “law of the state [that will] expand so much that it leaves the individual no space in which he may determine his own private principles of action.”
Ms Tushnet has a response ready for Messrs Dreher and Tracinski:
We have a sharply bifurcated culture, where like Glee is on tv and Tim Cook is a gazillionaire, and yet countless kids are being harassed, berated, and thrown out of their homes for being gay.
I am not convinced most straight people know that stuff, and think it’s awful. I am definitely not convinced that most gay people trust that our heterosexual brethren know and reject that stuff. That’s some of what you’re hearing in the “slippery slope” arguments, Can they refuse to carry us in the ambulance? Can they kick our family out of the restaurant?
Those slippery slope arguments are pretty hard to forget when you think about small towns and rural areas of a sort that do exist in Indiana, places where public space consists of a handful of businesses, a few fundamentalist churches, and a couple of government offices. If you live in one of those areas and the people running those businesses decide that it isn’t worth their while to be seen with the likes of you, your life could become very tightly circumscribed very quickly.
I’ll conclude with a very clever tweet from Michael Brendan Dougherty. Mr Dougherty, who has taken a rightist stand in this debate, posted this:
Well of course they do. That’s why mainstream political discussion had so little room for the rights of sexual minorities until recent times; most people can’t really imagine themselves wanting to exercise the right to form a same-sex relationship, or to be transgender, or to live any of the other lives that we now group together under the LGBTQI banner. And it’s also why every other minority group, including religious minority groups, has a hard time finding a hearing from the general public. I consider this tweet to be very clever because, in a single rhetorical move, it creates a category into which both the same-sexer who has to wonder whether the paramedics will refuse to put her in the ambulance and the photographer who has to wonder she’ll be sued out of business if she declines to take pictures at a same-sex wedding naturally fall. So he, like Ms Tushnet and Ms Thomas, manages to open a space in the debate for a human voice.
*That’s what people from Indiana are called, “Hoosiers.” No one knows why, though there is some evidence supporting a theory connecting it with an early-nineteenth century slang term from Yorkshire, “howzher,” which meant “oaf.” Anyway, though the word may have originated as an insult, people from Indiana insist on being identified as “Hoosiers,” and if you call them “Indianans” they genuinely do not understand what you mean.