What Makes Indiana's Religious-Freedom Law Different?

No one, I think, would ever have denied that Maurice Bessinger was a man of faith.

And he wasn’t particularly a “still, small voice” man either; he wanted everybody in earshot to know that slavery had been God’s will, that desegregation was Satan’s work, and the federal government was the Antichrist. God wanted only whites to eat at Bessinger’s six Piggie Park barbecue joints; so His servant Maurice took that fight all the way to the U.S. Supreme Court, which in 1968 decided that his religious freedom argument was “patently frivolous.”

Until the day he died, however, Bessinger insisted that he and God were right.  His last fight was to preserve the Confederate flag as a symbol of South Carolina. “I want to be known as a hard-working, Christian man that loves God and wants to further (God’s) work throughout the world as I have been doing throughout the last 25 years,” he told his hometown newspaper in 2000.

Growing up in the pre-civil-rights South, I knew a lot of folks like Maurice Bessinger. I didn’t like them much, but I didn’t doubt their sincerity. Why wouldn’t they believe racism was God’s will? We white Southerners heard that message on weekends from the pulpit, on school days from our segregated schools, and every day from our governments. When Richard and Mildred Loving left Virginia to be married, a state trial judge convicted them of violating the Racial Integrity Act. That judge wrote that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents … The fact that he separated the races shows that he did not intend for the races to mix.”

That’s a good background against which to measure the uproar about the Indiana Religious Freedom Restoration Act, which was signed into law by Governor Mike Pence last week. I don’t question the religious sincerity of anyone involved in drafting and passing this law. But sincere and faithful people, when they feel the imprimatur of both the law and the Lord, can do very ugly things.

There’s a factual dispute about the new Indiana law. It is called a “Religious Freedom Restoration Act,” like the federal Religious Freedom Restoration Act, passed in 1993.* Thus a number of its defenders have claimed it is really the same law. Here, for example, is the Weekly Standard’s John McCormack: “Is there any difference between Indiana's law and the federal law? Nothing significant.” I am not sure what McCormack was thinking; but even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.

The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes.  If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or 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.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.

So, let’s review the evidence: by the Weekly Standard’s definition, there’s “nothing significant” about this law that differs from the federal one, and other state ones—except that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.

Of all the state “religious freedom” laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this “religious objection” box. But, as Henry David Thoreau once wrote, “Some circumstantial evidence is very strong, as when you find a trout in the milk.”  

So—is the fuss over the Indiana law overblown?  

No.

The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is “nothing new.”  

Being required to serve those we dislike is a painful price to pay for the privilege of running a business; but the pain exclusion inflicts on its victims, and on society, are far worse than the discomfort the faithful may suffer at having to open their businesses to all.

As the story of Maurice Bessinger shows us, even dressed in liturgical garments, hateful discrimination is still a pig.  

* This article originally stated that the Religious Freedom Restoration Act passed in 1990. We regret the error.