How bad is Indiana’s religious freedom bill?


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Same-sex wedding ceremony in June, 2006

Same-sex wedding ceremony in June, 2006

Same-sex wedding ceremony in June, 2006

Indiana’s Religious Freedom Restoration Act (RFRA) is a done deal. The state senate passed its version last month. The house did the same on Monday. Today Governor Mike Pence plans to sign the bill, which provides “persons” — individuals, organizations, corporations — with a religious basis for challenging government mandates.

Like a host of other state RFRAs advancing this legislative season, the bill’s raison d’être is to permit florists, bakers, Domino’s Pizza, and any other entity to claim a religious right to refuse to provide services for same-sex marriages, which a federal appeals court has required Indiana to license. Given the partisan divide on SSM, it’s no surprise that most Indiana Republican legislators voted for the bill, most Democrats against.

Big Indiana employers like Cummins Engine have opposed it, and Gen Con, a major gamer convention, has threatened to pull out of Indianapolis if it becomes law. Indianapolis’ Republican mayor is concerned that it will send “the wrong signal” about his city and state. Which, to many, it will.

What’s important to recognize, however, is that this RFRA and its sisters are far from guarantees of a religious right to discriminate. Like the original federal RFRA, which passed Congress almost unanimously a quarter-century ago, they merely establish a basis for going to court to challenge “neutral laws of general applicability.” Until Justice Antonin Scalia persuaded four of his colleagues to go along with him in disallowing free exercise claims against such laws in Employment Division v. Smith (1990), the Supreme Court’s basis for deciding those claims was exactly what RFRAs have sought to establish — which is why they refer to the “restoration” of religious freedom.

That is to say, RFRAs would have courts apply the standard of “strict scrutiny” when free exercise claims are made, meaning that when someone asks for a religious exemption from a law the government must demonstrate that it has a “compelling interest” and that it has advanced that interest by the “least restrictive means.” Thus, a sincerely cannibalistic sect could be prevented from exercising its faith by the compelling government interest in protecting human life and the least restrictive means of forbidding the killing and eating of people.

Or, to take the immediately relevant example, consider mixed-race couples. As the Court made clear when it banned anti-miscegenation laws in Loving v. Virginia (1967), the government has a compelling interest in prohibiting racial discrimination with respect to marriage. And the least restrictive means of prohibiting it is, simply, not to permit religious exceptions to laws banning racial discrimination in matters related to marriage. So even though it was once common to cite Scripture as the basis for opposing “race mixing,” the courts won’t give florists, bakers etc. the religious right to refuse their services to mixed-race couples. (See Bob Jones University v. United States [1983].)

The appellate decision declaring Indiana’s ban on same-sex marriage unconstitutional did so on exactly the same grounds as Loving — that it violates the 14th Amendment’s guarantee of equal protection. Across the country, almost all federal courts have come to the same conclusion. If the Supreme Court goes ahead and, as expected, does likewise, there will be no basis for differentiating same sex-couples from mixed-race couples, when it comes to religious exemptions.

RFRA or no RFRA.

Update: And here’s how Indiana will extricate itself from the backlash.