If you’ve been following the controversy over Indiana’s new religious freedom law, you might be confused about what it really says and what it will actually do.
Some people describe the law as a “sword” that would allow discrimination against same-sex couples. Others say it’s a “shield” that would give people more freedom to follow the dictates of their faith.
Some say the law would give businesses more leeway to pick and choose which customers to serve. Others say it won’t make much difference -- that even with the law in place, virtually all businesses will end up behaving just as they would have before.
Some say the statute represents a significant change in the legal landscape, enacted at the behest of the Republican Party’s most conservative supporters. Others say it is strikingly similar to existing laws, including one that Congress passed with overwhelming bipartisan majorities and that a Democratic president, Bill Clinton, happily signed more than two decades ago.
Which one of these statements is correct? All of them.
To be clear, there’s no real mystery about the purpose of the “Religious Freedom Restoration Act,” which Republican Gov. Mike Pence signed last week. The goal is to give business owners a stronger legal defense if they refuse to serve lesbian, gay, bisexual and transgender customers and want to cite their faith as justification for their actions. That is why groups representing religious conservatives support it, standing behind Gov. Mike Pence as he signed the bill last weekend. That is also why groups advocating for LGBT rights, along with a slew of corporations and celebrities, have protested the law’s enactment -- creating such uproar that Pence said on Tuesday he was open to “clarifying” the legislation.
But intention is one thing, impact quite another. As legal experts pointed out to The Huffington Post, even with the Indiana law in place, a business owner refusing service to a same-sex couple might still lose a discrimination lawsuit. It would depend on several factors -- among them how the judge interpreted phrases like “compelling interest” and “substantial burden.” The outcome could also depend on whether the alleged discrimination took place in a city that has its own laws making such discrimination illegal.
These factors hardly make the law inconsequential -- particularly now that legislators in another state, Arkansas, have passed a similar statute and sent it to their governor to sign. But Indiana's law may be more significant because of what its sponsors were trying to do (and the grief they've gotten for it) than for what they've actually accomplished.
The original impetus for religious freedom laws had nothing whatsoever to do with same-sex marriage. Back in the 1960s, in a case called Sherbert v. Verner, the Supreme Court established a basic standard for protecting the free exercise of religion. The government could pass laws that affected free exercise, the court said, only if it could demonstrate a “compelling interest.” An example of such a compelling interest might be protecting public safety -- or, following enactment of civil rights laws, preventing discrimination based on race. (As Ian Millhiser has pointed out at Think Progress, supporters of segregation sometimes claimed Christianity supported separating people by race.)
But in a series of rulings from the early 1990s, federal courts allowed the government to infringe upon Native American religious practices -- by, among other things, withholding unemployment benefits from people who’d used peyote. The Supreme Court reasoned that such laws were permissible because they did not single out religious practices -- rather, they had neutral language and just happened to affect certain faiths adversely. Congress responded to these rulings by passing a federal religious freedom law. The margins were huge (the Senate vote was 97-to-3) and Clinton signed it without much fuss.
The federal religious freedom law basically restored the standard from Sherbert, dictating that the government may not “substantially burden” a practice of religion without a “compelling interest.” And even if the government does have such an interest, the law said, it must advance that interest in the “least restrictive” way possible. When the Supreme Court subsequently ruled that the law could apply only to federal action, some state legislatures passed their own versions. In other states, courts determined that state constitutions already provided residents with similar guarantees.
And that was more or less the last time these laws were a major topic of public attention -- until a few years ago, when cities and states began passing laws prohibiting discrimination based on sexual orientation and/or identity. Today, 20 states and dozens of cities have such laws on the books. But their spread alarmed social conservatives. It also created legal tension in some places -- between, on the one hand, laws prohibiting LGBT discrimination and, on the other hand, laws protecting the free exercise of religion, which for some people includes faith-based rejection of homosexuality.
One of those places was New Mexico. In a now-famous case, a gay couple sued a photographer who refused to take pictures at a same-sex marriage ceremony. (It was not an official wedding since same-sex marriage wasn’t actually legal in New Mexico.) The photographer cited the state’s religious freedom law as a defense. The state’s Supreme Court rejected that defense for a specific reason. New Mexico’s religious freedom law, the court said, only protected businesses from government action. It didn’t protect businesses from lawsuits by individuals or other private parties.
That decision reverberated in the conservative world, and the architects of the Indiana law very clearly had it in mind. Unlike the federal law and almost every other state religious freedom law, the Indiana statute says that businesses may use it as a defense “regardless of whether the state or any other governmental entity is a party to the proceeding.” As University of Baltimore law professor Garrett Epps noted in the Atlantic, that’s a critical difference -- even if it’s just a few words. More than two dozen law professors, many of them from Indiana University, made the same point in an open letter to the state Legislature several weeks ago. Notably, state House Democrats in Indiana offered an amendment clarifying that the religious freedom statute would prohibit discrimination by businesses. The Indiana Legislature as a whole rejected it.
But figuring out exactly what real-world impact this distinction (along with a few others) will have is not so easy. As conservatives like John McCormack of the Weekly Standard were quick to note, plenty of Indiana business owners could discriminate against same-sex couples even before the religious freedom law passed. That’s because Indiana is among the states with no law prohibiting such discrimination or identifying the LGBT community as a special class, like racial minorities or people with disabilities, that deserves special legal protection. Absent such laws, business owners are generally free to serve -- and not to serve -- whomever they want.
Of course, several Indiana cities, including Indianapolis, actually do have laws barring discrimination based on sexual orientation. And it’s in those places that the new law could give business owners protection they didn’t have before. But some legal experts aren’t sure whether, if faced with cases from those municipalities, Indiana state judges would even rule for the business owners. For example, while state laws generally trump local laws, a state judge might nevertheless decide that a city’s ordinance banning LGBT discrimination qualifies as a “compelling interest” -- enough to make such discrimination illegal, even with Indiana's RFRA in place.
“What the RFRA does is potentially give a defense to a business owner that wants to discriminate against a gay customer … that’s the thing of concern,” says Sam Bagenstos, the Frank Millard Professor of Law at the University of Michigan. “Now, whether it would actually have that effect is a little less clear.”
“Even if a RFRA is on the books, a state can still override a religious claim if it has a compelling interest,” says Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University. “I am pretty confident that if a state has an anti-discrimination law, any court will say that ending discrimination is a compelling interest. So even with these new religious freedom laws in place, the wedding photographer is still likely to lose.”
Ultimately, the most important limit on the impact of laws like Indiana’s may be changing public attitudes about sexual orientation. Polls show that most Americans now support same-sex marriage. And while feelings about religious freedom laws are bound to be complicated, the harsh reaction to Indiana’s law suggests that mainstream America no longer condones overtly discriminatory treatment towards the LGBT community.
That doesn’t mean that anti-gay bias isn’t still pervasive, that discrimination can never happen, or that a law like Indiana’s couldn’t enable it. The whole point of the law is to make sure a shrinking, anxious minority can continue to conduct business in a way that the majority increasingly rejects.
But one outcome of this fight could be yet more support for passing anti-discrimination laws -- which most states still do not have -- and yet more stigma for anti-gay attitudes. As Koppelman, who like Bagenstos is a strong supporter of same-sex marriage, wrote recently at the Social Science Research Network, “The gay rights movement has won. It won’t be stopped by a few exemptions.”