Cook may not be aware of this point or others that cut against his argument because reporting on this controversy has been abysmal. Cook may also be unaware that the “wave of legislation” that he fears has largely already happened. A very similar religious-freedom law has been on the federal books for 22 years, and that law itself codified a Supreme Court doctrine that had been in place for most of the previous few decades. Nineteen states besides Indiana have similar laws. The laws don’t seem to be abetting a rising tide of discrimination based on sexual orientation, or based on anything else.
What these religious-freedom laws say is that government can require people to violate their religious beliefs only when it is pursuing a compelling interest, and must do so in the least intrusive manner possible. Thus the Supreme Court recently ruled under a federal religious-freedom law that a Muslim prisoner doesn’t have to shave his beard. These sorts of accommodations have long had a place in American law, and have typically been advanced to protect Muslims, Hindus, adherents of traditional Native American religions and other minorities.
The Indiana law arguably differs from other such laws in two ways. It explicitly protects corporate “persons” in their exercise of religious freedom and it applies to legal cases in which the government is not a party. Other religious-freedom laws haven’t spelled out these points but have sometimes been read to include them. Under the Indiana law, then, an individual filing a discrimination case against a company could run up against a company’s claim that it had a religious duty to discriminate.
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