RFRA

Indiana's Revised RFRA Law Strikes the Worst Possible Balance

The threat of a corporate boycott has sacrificed religious liberties without protecting gays

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Mike Pence
DonkeyHotey / Foter / CC BY

Indiana Gov. Mike Pence (R) vowed to "clarify and fix" his state's new Religious Freedom and Restoration Act after major corporations threatened to boycott the state. And so he did—by completely gutting the law.

These businesses—and many caterwauling progressives—claimed that the original law gave religiously inclined business owners a "license to discriminate," especially against gay customers. But the amended law maximizes the damage on both ends: It undermines the rights of religious businesses without protecting gays from discrimination.

However, what is deeply ironic is that corporate America was able to wield its right not to do business (and boycott Indiana) by circumscribing the same right of Indiana businesses.

Indiana is hardly the first state to embrace a law like RFRA. The federal government—and 19 other states—already have RFRA laws on the books. But the reason that the Hoosier State's law has produced what The Week's Michael Brendan Dougherty aptly dubbed a "national freak-out" is that these other laws mostly protect individuals seeking relief from government intrusions into their religious beliefs. For example, thanks to the federal RFRA, Uncle Sam can't deny unemployment benefits to American Indians who consume an illegal hallucinogen like peyote during religious ceremonies because that would unduly burden the right to the free exercise of their religion.

The Indiana law went farther, and also applied to disputes between private parties. This "would allow people to discriminate against their neighbors," alleged Apple CEO Tim Cook, who has become a liberal hero by leading the corporate opposition against the law.

This is a horrible caricature.

For starters, the Hoosier RFRA allowed private individuals to discriminate only when that was absolutely necessary to avoid violating their core religious principles. A Christian restaurant owner's refusal to serve gays wouldn't fit the bill. However, a Jewish baker who refused to make sacramental bread for a Catholic Mass or an Evangelical photographer who declined to photograph a gay wedding might—might, mind you, not would. That's because the law provided merely an argument for courts to weigh when evaluating discrimination complaints against such individuals—not an automatic defense. Judges could still decide that equal treatment was a compelling enough government interest that such discriminatory actions against gays are prohibited.

There would be an argument to deny business owners even this little space to live by their spiritual sensibilities if the discriminated individuals couldn't obtain the services they needed elsewhere—as was the case with blacks in the Jim Crow South prior to the passage of the 1964 Civil Rights Act. But discrimination isn't as institutionalized now as it was then, especially against gays, who have gained rapid acceptance in recent years. If one establishment refuses to service gay customers, there are myriad others that will, imposing no severe hardship on them. To insist on being served by the few people whose beliefs would be violated seems more like a projection of power rather than a plea to secure legitimate rights.

Furthermore, if corporations merely boycotted Christian businesses whose beliefs they found abhorrent, it would be one thing. But what's truly obnoxious about their campaign was that they were using their right not to do business with Indiana, because it was doing something they disagreed with, to obtain a law that would deny Indiana businesses the same right not to do business with folks who they don't agree with. This is simply intolerance masquerading as a crusade for justice and equality—a naked use of brute market power to legislate his views.

That said, the "national freak-out" against Indiana hasn't emerged in a vacuum. Gov. Pence unsuccessfully tried to outlaw gay marriages in Indiana, after all. So there is little reason for gays to trust him, notwithstanding his protestations that he found discrimination against gays personally abhorrent.

Also, the state doesn't have a statute barring discrimination by sexual orientation or gender identity in housing, education, and public accommodation as it does by race. So if Indiana were striving to balance religious liberties and equal treatment of gays, it would have made sense for it to pass such a law but leave RFRA alone, which is sort of what Utah has done. "The state passed new religious-conscience accommodations, but they were tied to new gay-rights protections," Brooking Institute's Jonathan Rauch has noted.

Such an approach would have offered gays standing protections against discrimination, but allowed judges to use RFRA to carve out exceptions for religious conscientious objectors on a case-by-case basis if they could offer strong reasons why discrimination was necessary to maintain some central tenet of their faith, balancing both sides' interests.

This wouldn't be ideal from a libertarian standpoint because, in a free society, people should be free to not associate with someone, even for the most odious reasons. But it wouldn't be the worst thing either. Indiana's "fix", however, strikes the worst possible compromise. It won't make it illegal to discriminate against gays  (except in communities such as Indianapolis that have such laws) but it'll take away a potential legal defence from those who do, sowing confusion and frustration.

This isn't a worthy compromise for a nation founded on the promise of protecting religious liberty and ensuring equality. But if the nation's corporations are pleased, who cares, right?

A version of this column originally appeared in The Week.

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  2. “(Reuters) – Overwhelmed by fear, members of the main gay rights group in the Indonesian town of Banda Aceh started burning piles of documents outside their headquarters in late October, worried that the sharia police would raid them at any moment.

    Indonesia’s northernmost province of Aceh had weeks earlier passed an anti-homosexuality law that punishes anyone caught having gay sex with 100 lashes. Amnesty International criticized it, saying it would add to a climate of homophobia and fear.”

    —-Dec 27, 2014

    http://www.reuters.com/article…..0W20141228

    What are Tim Cook and Apple doing about discrimination against LGBT in Indonesia?

    What are Tim Cook and Apple doing about discrimination against LGBT in China?

    What are Tim Cook and Apple doing about discrimination against LGBT in Saudi Arabia?

    Never mind boycotting Indiana–is Tim Cook even criticizing discrimination against LGBT in places like Indonesia, China, or Saudi Arabia?

    Doesn’t Apple have extensive operations or supply networks in all of those countries?

    1. but those are savages. we can’t hold them up to our enlightened standards.

      1. So Tim Cook must be racist, too.

        1. Well, duh.

        2. Not racist. Just a demagoguing idiot.

    2. They aren’t white folks with a country twang so it’d be inappropriate for him to criticize.

    3. Look, while it’s bad they are afraid, they are also releasing vast amounts of CO2 by burning paper. That clearly makes it far more nuanced situation than hick bakers.

    4. Tim Cook indicated that these laws are dangerous because they could do away with decades of progress towards equality. This coming from someone with a net worth of $785M.

      1. And don’t forfget the countries where Tim Cook put his new plans. Ironically when they want to boycott Indiana, I saw this article from Breitbart where they do business in gay-hating countries….The old “Do as I said, not as I do” trick…

        And there seems to be more about the “Boycott Indiana” as that articlee mentionned:The Church of the State is the one true faith. I could imagine some statists doing a prayer to government like Butters in that episode of South Park. 😉

  3. “Furthermore, if corporations merely boycotted Christian businesses whose beliefs they found abhorrent, it would be one thing. But what’s truly obnoxious about their campaign was that they were using their right not to do business with Indiana, because it was doing something they disagreed with, to obtain a law that would deny Indiana businesses the same right not to do business with folks who they don’t agree with. This is simply intolerance masquerading as a crusade for justice and equality?a naked use of brute market power to legislate his views.”

    Well said: hypocrisy is rampant.

  4. Shikha and I agree on something.

    Gods be praised!

  5. What I don’t get is why gay-friendly businesses aren’t saying, “um, hello? We’ve welcomed you with open arms for years even at the risk of losing conservative clients and now you beat down the doors of conservative Christian businesses and demand they give you service? Well, f*** you!” So much for choosing to be inclusive.

    1. That taste is the spicy tang of liberal logic!

  6. Is it bad that I saw Shikha’s name and then read this as “India’s RFRA law”

  7. And I was just thinking… Who’s opinion haven’t I heard about Indiana and the RFRA?

    1. We could ask the panhandlers along the road between my garage and work (the panhandlers with nicer cars than mine)

  8. What’s interesting that even European newspapers that typically parrot the NYT/WaPo line when they cover US affairs are taking the side of religious freedom. Here’s from the Frankfurter Allgemeine Zeitung:

    Legalisiert Amerika die Homophobie? (Is America legalizing homophobia?)

    The answer is no. And a stronger no than we got from Nick and Robby last week.

    1. You mean the side of religious belief while other beliefs can go to hell.

    2. Is America legalizing homophobia?

      Why would homophobia be illegal in the first place?

      Oh yeah, that right, Eurotardia and their belief in freedom of expression and thought “within reason.”

      I honestly don’t give a shit what Eurotrash think about Americans or American politics, good or bad.

      1. The goal of the left-wing is to suppress racism, sexism, homophobia and other beliefs they disapprove of.
        The proof of this is that all anti-discrimination laws are aimed at people’s motives to actions and not the actions themselves.

      2. I think that’s the joke. Homophobia clearly should be legal, and they may be using ironic feigned indignation at the idea of ‘legalizing homophobia.’ to point out the hypocrisy of those who just a few years ago were all about ‘legalizing homosexuality.’ \

        This is assuming that grizzly was telling the truth when he said that the Zeitung was in favor of freedom of association.

    3. Amerikanischen Fluegzeugen haben besseren Piloten.

  9. Is Reason saying it supported the initial law ? It discriminated for religious belief but ignored freedom of belief in general. A conscientious objector law of some kind was needed or none at all as far as I am concerned.

    What was really needed was repeal of the anti-discrimination laws which are state-mandated associations and an inherent violation of our civil liberty to freedom of association.

    1. “Such an approach would have offered gays standing protections against discrimination, but allowed judges to use RFRA to carve out exceptions for religious conscientious objectors on a case-by-case basis if they could offer strong reasons why discrimination was necessary to maintain some central tenet of their faith, balancing both sides’ interests.”

      Apparently, Dalmia thinks that giving homosexual protected class status balances out religious freedom protections and the freedom of association can go pound sand.

      1. I’m afraid too many people have adopted anti-discrimination laws … maybe because they never recognized the state-mandated association which I think would have made a damn good argument against them at the time.

  10. Indiana should have sued Apple, Connecticut, et al, to compel them to do business in Indiana.

    Taste of their own medicine?

    1. +1 LOL

  11. Which corporations were boycotting (or even threatened to boycott) Indiana?

  12. The militants like Tim Cook are revealing their basic mindset, which is a hatred of Christians who follow traditional morality and a demand not merely for tolerance but approval. The fact that they profess to find Indiana more hostile to homosexuals than countries such as Saudi Arabia and Iran is clear proof that homosexual rights are merely an excuse. The evidence of failed attempts at RFRA in Arizona and Georgia, combined with the coerced modification of the Indiana statute, clearly indicate that homosexuals are definitely NOT powerless as a group.

    I will also note that the issue regarding homosexual marriage is not banning, but merely formal state recognition for such purposes as tax collection. It might be possible to compromise on something like civil unions, but homosexuals used that as a wedge to get their way in California, eliminating any reason to make such compromises elsewhere.

    1. “The militants like Tim Cook are revealing their basic mindset, which is a hatred of Christians who follow traditional morality and a demand not merely for tolerance but approval.”

      Not quite. Cook is merely signaling to his largest customer base, leftist US millenials, that he feels their anxst at possibly being called homophobes.

  13. Furthermore, if corporations merely boycotted Christian businesses whose beliefs they found abhorrent, it would be one thing.

    I suspect it would also be an illegal thing, if the corporation doing the boycotting was a public accommodation type business.

  14. Here’s the problem with this idiotic fix:

    It gets the State into the business of establishing religion. You have courts examining people on the genuineness of their religious belief, and ruling on the substance of the tenets of their religion, in order to decide which religious beliefs are protected by the State, and which are prosecuted by the State.

    Its horrible.

    1. And I suspect it was the attachment of religion to the intent of the law that made it so easy to attack and easy to reject by the left-wing.

      On the other hand, I am confident Mike Pence would have never signed a conscientious objector type of law. Only religious beliefs deserved his ultimate respect I guess.

      1. It may also be because to support true freedom of association, rather than simply exceptiona freedom of association for religious beliefs, you would open the can of worms of legalizing racial discrimination. Now, in real life, legalizing racial discrimination should be a non-issue, as virtually no businesses would actually practice it, and any that did would be swiftly cut down in the marketplace. But it would give fuel to the leftist propaganda war in its portrayal of their opponents as a bunch of inbred racists, and a good proportion of Americans would buy it.

        1. And this is why it is so important to show and state that anti-discrimination laws are state-mandated associations ! People may still respect the concept of freedom of association but you have to explain it to them that way.

          You are supporting the civil right to freedom of association …. not supporting racism as I am sure the left will try to portray.

    2. “It gets the State into the business of establishing religion.”

      If the court cannot make a decision about religious practice, then a citizen cannot prove that a the government has constrained religious practice. It is a Catch-22 that effectively writes free exercise out of constitutionally protected rights.

  15. Some of you may have seen this already.

    https://www.youtube.com/watch?v=RgWIhYAtan4

    That’s right, you can see these Muslim bakery owners effectively deny service to Steven Crowder (who posed as a gay). They encourage him to take his business elsewhere in such hushed tones. But apparently there’s been no calls of boycott.

    We all know this really isn’t about religious freedom or gay rights. This is partisan hackery by the left, who always need the reason to hate on what passes as the “right” (in their mind) for sustenance. If some Muslim or Bahai practitioners occasionally and politely told gay customers to take their needs elsewhere, there would be no real outrage. None, ZERO. And if the support for RFRA came from non white followers of Abrahamic religion, then the lefty politicians will try to ride the fence on the issue.

    In my 20 years of eating at Koreatown, I was served food by a Latino or a Korean 99% of the time. I see black workers in Asian markets and such once or twice. I’ve known yy illegal alien friends earn 5 bucks an hour in cash. O my gosh, why aren’t the progressives cracking down on these businesses? They won’t hire non Latinos for labor! That’s discrimination there. Right?

  16. “Also, the state doesn’t have a statute barring discrimination by sexual orientation or gender identity in housing, education, and public accommodation as it does by race.”

    Well, at least it’s unambiguous that race is genetic. One is born black, white, polka dot. As long as the argument remains unsettled that homosexuality might be a lifestyle choice that precludes a biological notion of propagating the species, the 3-4% can please just leave me alone. That used to be all they wanted. I’ve always left them alone. Now they want the state to force people against their will to ackowledge the righteousness of their lifestyle. Fuck LGBTFs (for fascists, not friends).

  17. The author makes one fatal flaw in logic. I won’t say lies, but it’s close. The Indiana RFRA includes corporations (legal, not natural persons). Companies do not have free exercise, individuals do. You might make an argument for a family owned corporation, but are then dangerously close to piercing the corporate veil. the whole purpose of a corporation or partnership is to separate the owners (shareholders) from the business for tax and liability purposes.

    The INdiana GOP wants to have it both way – sell out to corporations at the expense of natural persons and pretend they stand for freedom.

    Indiana’s RFRA should have been repealed flat-out.

    1. Awesome, some fucktard lefty with the “corporations aren’t people” argument.

      Get lost shitheel.

    2. Corporations are people. Just under a legal entity to shield them from personal liability, and maybe for tax reasons. I. So sick of this shit that somehow if you incorporated you have no fucking rights. You do.

      1. The main reasons for incorporation are:
        1. The corporation can own the physical assets of the business.
        2. The corporation can outlive the founders.

        Imagine if the company that provides your cellphone and links it with telephones worldwide had to be reestablished every time the sole proprietor or a partner died or retired. Imagine how difficult it would be to find a reasonable number of people who could individually own the cellphone factory and tower systems.

        I belong to a gun club. The shooting range land and equipment belong to the corporation. Since it’s been operating more than 100 years none of the founding members are still alive, but the board members and officers that have replaced them are doing just fine. There’s no reason it won’t last another hundred years, long after I’m off the board.

        That’s not even remarkable. There’s a Japanese construction corporation that’s over 1,400 years old.
        http://en.wikipedia.org/wiki/L….._companies

    3. The validity of corporations is still debated among libertarians as far as I know. It should merely be stated for now that as long as the law in general recognizes them like just another business then that is the appropriate logic to use for now until the greater question is resolved.

  18. Either people believe in the right to free association, or they don’t.

    1. This is true, but I will also tell you now in case you haven’t decided that citizens do not have a free association with their state and never will as long as they remain coercive monopolies.

      You either support the state or you don’t support freedom of association !

      Support voluntary government rather than be a limited statist, LOL

    2. Thank you suicidy for opening that up to me. lol

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  22. So far from asking for tolerance, anti-discrimination laws ask the state to “establish” beliefs, which is opposed to freedom of religion.

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