Video: Protests over Indiana version of RFRA seem to miss one important point

Actually, it’s more like 30 important points, but we’ll get to that in a moment. Gov. Mike Pence signed a bill into law on Thursday that offers protection for religious expression, and the entertainment world has hit the roof over it. CNN provides coverage of the protests that has been typical of that seen all week:

CNN’s announcer doesn’t get around to mentioning until almost at the end of the segment that other states have similar laws, and never mentions that the federal government does as well. Senators Orrin Hatch and Ted Kennedy sponsored the original Religious Freedom Restoration Act (RFRA) after the Supreme Court’s Smith decision that failed to protect a Native American who was denied employment benefits after having tested positive for peyote. Bill Clinton signed that RFRA into law in 1993 after it passed nearly unanimously in the Senate.

Since then, 19 other states have passed similar legislation to apply RFRA to their own jurisdictions:

Indiana has come under fire for a bill signed Thursday by Gov. Mike Pence (R) that would allow businesses to refuse service for religious reasons. The NCAA has voiced its concern ahead of Final Four in Indianapolis next week, there are calls to boycott the state, and Miley Cyrus has even weighed in, calling Pence a name that we can’t reprint on this family Web site in an Instagram post.

But Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA, according to the National Conference of State Legislatures. …

Indiana might be treated as if it’s the only state with a bill like this, but it’s not.

Another 11 states have judicial precedents that constitute a RFRA policy in their courts. Over the last twenty-plus years, RFRA statutes have a clear track record of careful jurisprudence, because they don’t protect ad-hoc discrimination on any basis. That’s true on both federal and state levels, and we know this in part because the hysterics shrieking over the law in Indiana offer nothing but ignorant hypotheticals. They cannot point to a case where RFRA has been used to justify broad discrimination, because it never has.

Cases decided under RFRA get strict scrutiny on three tests. First, the religious belief has to be sincerely held, and not just a pose to make a point. Second, the state interest in overriding the religious belief has to be compelling. Last, the action taken by the state has to be the least intrusive that still satisfies the compelling state interest. Courts have been using these tests for more than two decades to separate real cases of state infringement on religious practice from simple discrimination. The Hobby Lobby decision is one such case; the Obama administration lost that case because the Supreme Court noted that even HHS had to admit it didn’t use the least intrusive method available to them, and largely punted on the issue of whether the contraception mandate intruded on sincerely-held religious belief.

RFRA covers a lot more issues than those arising from same-sex weddings, of course. This week on Relevant Radio, I interviewed a couple of guests on cases involving the Amish and building codes, and other RFRA applications. Until the last couple of years, RFRA didn’t have much to do with the kind of public-accommodation disputes that same-sex marriage produces. It’s unclear how courts will view them until specific cases arise, but it’s almost a sure bet that it won’t allow people to discriminate against gay customers solely on the basis of their sexual orientation. The issue will rest on whether the state can force businesses to participate in events (same-sex marriages) that violate their religious beliefs, and that’s the kind of distinctions that courts have been making very successfully for over two decades under RFRA.

Melinda Selmys believes that Christians in this case are being petty with some of their objections (but not all), and responded on Twitter to a discussion we had over her post:

Except, though, that almost no one is arguing that exercise of religion excuses bigotry.  Christians have not objected to providing services to LGBT customers, but to being forced to participate in same-sex weddings by the state, either by baking a cake for one or having to photograph it, and then getting forced out of business by fines when they refuse out of religious conscience. Furthermore, Christians can’t “abuse” RFRA, because it’s the courts that use it to adjudicate disputes of this kind. RFRA laws constrain the states and their actions — they don’t undo public-accommodation laws for citizens. (Merely putting a RFRA sign in the window, so to speak, doesn’t make discrimination a RFRA case.)

In my own opinion, I agree with Melinda that Christian caritas calls us to minister to all in our community — the rich, the poor, the popular, the unpopular, the prisoner, and so on. We only draw the line when we are forced to participate in activities that violate our Christian conscience — for instance, offering sacrifices to idols (as martyrs resisted in the first centuries of the church), and so on. Thanks to RFRA, we have courts that can draw pretty nuanced distinctions between the two poles using strict scrutiny on state action, but it doesn’t mean Christians will automatically win those disputes, nor should it, depending on the circumstances.

The only reason for the hyperbolic outrage coming from the entertainment and sports industries the last two days is willful ignorance. That’s their problem. It doesn’t have to be ours.

Update (3/29): The 1993 RFRA did get three dissenting votes in the Senate, so it did not pass unanimously as I had originally stated. I’ve changed it to “nearly unanimously” above. This point is also worth considering:

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David Strom 8:01 AM on February 03, 2023