Some of you may be aware of a new category of law that comes under the rubric “Religious Freedom Restoration Act.” A U.S. federal statute was first introduced, by of all people, Democratic Senator (then Representative) Chuck Schumer, entitled the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb and ostensibly aimed at preventing laws that “substantially burden” a person’s free exercise of religion. The bill passed by a unanimous U.S. House and a near unanimous U.S. Senate, and was signed into law by President Bill Clinton. Since then, a number of individual states passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities. Including Illinois, where a young State Senator named Barack Obama voted for the law.
On Thursday, March 26, 2015, Governor Mike Pence signed into law Indiana’s version of a Religious Freedom Restoration Act. You wouldn’t think this was news, except for the suspicious timing of the law. As the New York Times reported:
An Indiana law that could make it easier for religious conservatives to refuse service to gay couples touched off storms of protest on Friday from the worlds of arts, business and college athletics and opened an emotional new debate in the emerging campaign for president. Passage of the Republican-led measure, described by advocates as protecting basic religious freedom, drew fierce denunciations from technology companies, threats of a boycott from actors and expressions of dismay from the N.C.A.A., which is based in Indianapolis and will hold its men’s basketball Final Four games there beginning next weekend.
That’s right folks, even the NCAA expressed its dismay at a law that is intended to make it easier for restaurants, hotels, motels and other service establishments to refuse to serve gay people because their sexual preference offends their fragile religious sensibilities.
Let’s skip over the fact that Jesus never said anything about homosexuality and that the entirety of the supposed sin of homosexuality comes from Leviticus 18. Of course, Leviticus also says that it’s an abomination to eat shellfish, which has led to the ironic site, God Hates Shrimp. Let’s take at face value that there are some Christians who really believe that homosexuality in any form is an abomination. So, what this law then does, is actively allow them to refuse to serve gay couples, just as folks in the south refused to serve African-Americans back in the day. Critics argued that the catalyst for the measure was to allow businesses, such as florists and bakeries, to refuse services to same-sex couples following the legalization of same-sex marriage in the state.
Apologists for the law have claimed that it does not do that which we think it does. So, let’s look at what the law actually says. The act, which has not yet been codified on the Indiana legislative website, was enacted as the text of Senate Bill 568. The digest to the act explains it as follows:
Provides that a state or local government action may not substantially burden a person’s right to the exercise of religion unless it is demonstrated that applying the burden to the person’s exercise of religion is: (1) essential to further a compelling governmental interest; and (2) the least restrictive means of furthering the compelling governmental interest. Provides that a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a state or local government action may assert the burden as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding. Allows a person who asserts a burden as a claim or defense to obtain appropriate relief, including: (1) injunctive relief; (2) declaratory relief; (3) compensatory damages; and (4) recovery of court costs and reasonable attorney’s fees.
So, a bakery owner asked to bake a cake for a guy couple’s wedding could claim that serving gay customers is a “substantial burden” on his religious belief that homosexuality is a sin, and go to court to seek damages, including court costs and attorney’s fees.
A few days after the enactment of the statute it was reported that Indiana’s Governor “didn’t anticipate the hostility that’s been directed at our state.” Indianapolis-based Angie’s List just announced that they are canceling a $40 million headquarters expansion.
You didn’t anticipate that?
The Governor and legislature are now scrambling to “clarify” what the law is intended to do, and the Governor was quoted as saying that “a bill will be introduced this coming week” to clear up the law he signed Thursday.
But the problem isn’t with the details of this bill: the problem is with the whole notion of a Religious Freedom Restoration Act, as if religious freedom were in any way under attack here in the United States. It’s a bad idea, a bad law, and just creates confusion. Religious freedom is already protected by the highest law of the land, in the First Amendment to the United State Constitution. Better to just stick to that amendment, which has done an admirable job protected religious liberty in the United States for the last 224 years.