The Next Steps in the Battle Over Religious-Freedom Laws

Same-sex marriage supporters press their advantage, as the fate of statutes in Indiana and Arkansas remains uncertain.

Nathan Chute/Reuters

Sometimes social change seems like the advance of a glacier: a few inches a year, with no real visible effect. And sometimes the ice breaks up overnight.

Yesterday, Indiana Governor Mike Pence proclaimed that that the Indiana's Religious Freedom Restoration Act needed fixing. Meanwhile, Arkansas Governor Asa Hutchinson vetoed an even scarier “religious freedom” bill—one he had originally promised to sign as passed.

It would be easy to proclaim the battle over, but that isn’t in sight yet. On Wednesday, the Indianapolis Star reported that legislative and business leaders have worked out language to place in the state’s ill-starred Religious Freedom Restoration Act. Here’s the Star’s summary:

The clarification would say that the new "religious freedom" law does not authorize a provider – including businesses or individuals – to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service. The proposed language exempts churches or other nonprofit religious organizations – including affiliated schools – from the definition of "provider."

Katie Blair, a campaign director for Freedom Indiana, a leading gay-rights group, told the Star the language did not go far enough. “We need full protection from discrimination against all LGBT Hoosiers across the state and a guarantee that this RFRA cannot be used to undermine any nondiscrimination protections,” she said.

The new language requires careful parsing. (Indiana  legislators released their proposed modification on Thursday morning; late Wednesday night, the Arkansas Senate passed a new bill whose language is more closely modeled on the federal law.) Pence and other supporters of the original bill continue to insist that it is “not a license to discriminate.” He uses those words so often that it’s hard not to conclude that they are carefully chosen.

Of course it’s not a “license to discriminate”—that’s not what a RFRA is. These laws are instructions to courts on how to assess claims for religious exemptions to a wide variety of law. In general terms, they lay out (1) who can use the law; (2) what kinds of cases it will apply to; and (3) what standard the court will use to decide whether the claimant has a right to an exemption.

In two of these areas, the Indiana law as enacted and signed is broader than the federal RFRA or most other state laws. It provides religious protection to more businesses than the federal statute does, even after the Hobby Lobby case; and it explicitly provides a defense in actions between private parties, such as, let’s say, discrimination suits (the federal statute is silent on this issue, and federal courts are split). Beyond that, it allows businesses or individuals to challenge legal actions even before they happen—if they are “likely” to happen.

So when the “fix” is finally unveiled, read it carefully. And for a crash course in what shouldn’t be there, look at the Arkansas religious-freedom bill that Gov. Hutchinson refused to sign on Wednesday. This bill makes the Indiana law look like the Universal Declaration of Human Rights. It begins with this reassuring finding: “It is a compelling governmental interest to comply with federal civil-rights law." But consider that federal civil-rights laws currently do not protect against discrimination by sexual orientation; the “finding” is not part of the actual statute; and, most importantly, the Arkansas legislature does not have and never has had the slightest power to set aside or reduce the scope of any federal law. It’s as generous as a “finding” that “in Arkansas, light is given permission to travel at 186,000 miles per second.”

The actual binding language of the statute, meanwhile, seems to apply to even more for-profit businesses than the Indiana statute, and it applies to private actions. It also tells the state courts to assess claims for exemption by a significantly different standard than that used in the federal law. To overcome a claim for exemption under the Arkansas law, the government must show that any “burden” on free exercise placed upon a person or business is “essential to further a compelling governmental interest”; the federal statute simply says “in furtherance” of a compelling interest. Lawyers and judges pay close attention to wording shifts like that. The tightening language could shift a result in favor of a religious claim by a business.

The harshness of that standard is underlined in an ominous final section, which provides that “there is not a higher protection offered by the state than the protection of a person's right to religious freedom.”

If there is no right more protected than “religious freedom,” then no “burden”— and certainly not any “burden” imposed by a local statute that forbids discrimination in employment, housing, or public accommodation—can ever be “essential” enough to override a claim for religious exemption.

That’s not circumstantial evidence of discriminatory intent; that is a smoking gun.

The proponents of these very bad bills are on the defensive right now, largely because national business interests have stepped in. The forces of equality have the advantage; and while they have it, they would be wise to insist that the new wave of state RFRAs—if they are to be adopted at all—contain no deception and no weasel words that might allow them to be used against civil-rights claims.

Some conservative voices are proclaiming that this controversy means that gays and lesbians have gone too far. New York Times columnist David Brooks suggests that the gay movement is “going off the rails … A movement that stands for tolerance does not want to be on the side of a government that compels a photographer who is an evangelical Christian to shoot a same-sex wedding that he would rather avoid.” His Times colleague Ross Douthat warns that “both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary”—by which, I think, he means that adding sexual orientation to the list of traits protected by civil-rights laws would be an overreach.

I haven’t got much hesitation saying that commercial photographers open to the public should take all customers, regardless of race, religion, sex—or sexual orientation. And of course, public accommodations are not usually about wedding photos—they are about pediatricians, about pharmacies, about daycares or private schools for your children. They are about being able to shop and eat in public without exclusion and humiliation.

Beyond that, I have heard this kind of rhetoric before. You reformers are tyrannical, you are remorseless, you are uncivil. Why do you insist on complete equality? Just wait a few years, or a decade, or a generation, and all this will clear up on its own.

But social change doesn’t work that way. Glaciers sometimes melt overnight; but with shocking swiftness, they may freeze again.

I don’t say this out of a desire to punish people who disagree with me. I know that people of faith are tormented by some of these changes—just as some of my Christian neighbors in the 1960s were tormented by the civil-rights challenge to their views of the Bible. But equality and an open society are, in the end, usually better even for those who fear them. I learned that lesson in the South half a century ago, watching a white community terrified of racial change emerge from its chrysalis not only unhurt but enriched. That experience convinced me that any human inequality supported by law is a dangerous and unstable flaw in the fabric of democracy, and that the result of lifting artificial barriers is usually renewed energy, solidarity, and progress.

There are powerful forces hoping to roll back all the gains in civil equality made in the past 25 years. If you doubt that, just look at the Alabama court system—and consider that state RFRAs often put important social questions in the hands of elected state judges. The moment is propitious, but it is not the triumphal march Brooks and Douthat seem to think it is.