The frenzied outpouring of disproportionate outrage from the left over Indiana’s state-level version of the Religious Freedom and Restoration Act can be best described as a tantrum.
A number of firms including Apple and Angie’s List Inc. have announced that they will respond to the legislation that critics insist is designed to discriminate against gays and lesbians by reviewing their commitments to do business in the state. A cornucopia of liberal groups are organizing a boycott of all things Hoosier. And, on Monday, Connecticut Governor Dannel Malloy revealed that he will prohibit all state-sponsored travel to this heretical member of the Union. He joins the mayor of Seattle, who also blocked city-funded travel to Indiana in protest over this perfectly banal law.
This reaction is nothing short of an embarrassment for the left and a repudiation of the values that the Democratic Party espoused as recently as the 1990s, when President Bill Clinton signed a national version of this act into law.
The hypocrisy exhibited by the left in this display of childish pique over Indiana’s RFRA bill is impossible to ignore.
“[W]hile Indiana is being criticized, the NCAA didn’t say it was concerned over how athletes and employees would be affected by Kentucky’s RFRA when games were played there last week, there aren’t any plans to boycott states like Illinois or Connecticut, and Miley Cyrus has yet to post a photo of President Clinton or any of the 19 other governors who have also signed RFRAs,” The Washington Post’s Hunter Schwarz wrote. “Indiana might be treated as if it’s the only state with a bill like this, but it’s not.”
“This law, like other RFRAs, merely requires that state laws meet a demanding, but hardly insurmountable, test before infringing upon the religious practice or conscience of religious believers,” observed The Washington Post’s Volokh Conspiracy blogger Jonathan Adler. “If the law imposes a substantial burden on religious belief, the law must yield unless the law serves a compelling state interest and is the least burdensome way to advance that interest.”
Malloy’s absurd response to the Indiana law is, no doubt, an effort to distract his liberal constituents from the fact that Connecticut’s RFRA law – yes, they have one, too – goes farther than the act signed last week by Gov. Mike Pence.
Connecticut’s law, however, is far more restrictive of government action and far more protective of religious freedoms. How? Because the Connecticut RFRA law states that government shall not “burden a person’s exercise of religion[.]” Note that the word “substantially” is not included in Connecticut’s law.
The effect of the absence of that single word is enormous. It states that Connecticut government may not burden the free exercise of religion in any way. That makes it far more protective of religious liberty than the Indiana law that has so outraged Connecticut’s governor.
If Connecticut Gov. Dan Malloy wants to blatantly discriminate against state’s with religious liberty laws on the books, that’s his prerogative. But if he doesn’t want to look like a completely ignorant hypocrite who has no idea what he’s talking about, he should probably take a look at his own state’s laws first.
That seems straightforward enough. Still have questions? Over at The Federalist, attorney Gabriel Malor answers all of your pressing inquiries. The most substantive assertion that he makes, however, is that all RFRA’s do not and cannot license discrimination.
“RFRA is a shield, not a sword,” Malor noted. “It can be used to defend oneself against lawsuits or administrative action. It can’t be used affirmatively to try and deprive others of the protections of law.”
The Federalist’s Mollie Hemingway remarked that the 1993 Religious Freedom and Restoration Act, authored by congressional Democrats and signed into law by a Democratic president, has actually helped a number of religious minorities receive justice after being subjected to discrimination.
Those who oppose the Indiana RFRA on its merits contend that this law differs from nearly all other state-level religious freedom laws in that it allows corporate entities the same “free exercise” rights afforded to individuals and churches. “A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage,” wrote Garrett Epps in The Atlantic.
He spent an inordinate amount of time in that piece attempting to make the case that Indiana’s law codifies the logic espoused by Jim Crow-era segregationists who sought religious justifications for racial discrimination. But Epps conceded in the above that the federal version of the RFRA now also protects corporate “free exercise” rights.
Malor expanded on this point:
Indiana’s RFRA applies the same standard as in the other RFRAs that is described above: substantial burden versus compelling interest and least restrictive means. Indiana’s RFRA is a defense not just for individuals, but also companies and corporations. This is similar to the federal RFRA after Hobby Lobby, which also applies to individuals, companies, and closely-held corporations. But not all state RFRAs include companies and corporations. So that’s different in some states.
Indiana’s RFRA also protects individuals both in lawsuits or administrative actions brought by the government and in lawsuits brought by private parties. Some states, like New Mexico, do not allow RFRA to be used as a defense in litigation where the government isn’t a party. Also, the federal circuit courts are split about whether the federal RFRA can be used to defend against private lawsuits where the government isn’t a party. So that’s also different in some states and in some federal circuits.
Otherwise, it’s the same law.
Like so many of the left’s fits of self-righteousness, this episode merely exposes the plethora of double standards to which liberals so frequently appeal. No Democratic politician can be expected to advance within the party without expressing opposition to the law Bill Clinton signed, including the former president’s wife:
— Hillary Clinton (@HillaryClinton) March 27, 2015
For the left, their ongoing overreaction to Indiana’s RFRA is a humiliation. But it is one that is driven by a collective irrationality that the Democratic Party has come to cherish.