“…More than 50 cases have been decided against individuals making religious claims against Government action…This act will help to reverse that trend by honoring the principle that our laws and institutions should not impede or hinder but rather should protect and preserve fundamental religious liberties…What this law basically says is that the Government should be held to a very high level of proof before it interferes with someone’s free exercise of religion…We are living in a country where the most central institution of our society, the family, has been under assault for 30 years…Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight[ing] to the death to preserve the right of every American to practice whatever convictions he or she has.”
Now, if you’ve been on social media in the past two days, you might think this is probably what clearly-bigoted Indiana Governor Mike Pence stated as he signed Indiana’s Religious Freedom Restoration Act into state law. But no, this quote is by none other than our very own President Bill Clinton in 1993, when he signed the unanimously passed federal Religious Freedom Restoration Act in 1993.
Want to know the ironic part? Indiana’s RFRA is almost identical to the Federal one passed in 1993 that just about every politician in the country, on both sides of the aisle, supported.
Here’s the text of the federal RFRA:
Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person —
(1) furthers a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
And here is the text of Indiana’s RFRA:
A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
So what happened? They’re identical, and everyone, including liberal icon President Bill Clinton overwhelmingly supported the federal version. So what gives?
I’m honestly stunned at how much misinformation everyone is eating up, without actually bothering to read the law, or the history behind it. We see a blog or tweet from a famous celebrity, take it as Gospel assuming it must be the truth, and run with it, even though mostly everything that has been written is not true. It seems like a lot of people need help explaining Indiana’s Religious Freedom law, so I thought I would give it a go.
Is the Religious Freedom Restoration Act a free pass to discriminate against gay people?
No. Not at all. Stanford law professor Michael McConnell says,
“In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”
This is where the crux of the misinformation lies.
So then, what is the Religious Freedom Restoration Act?
The first RFRA was signed into federal law in 1993 by Democratic president Bill Clinton. It was unanimously passed by the House of Representatives where it was sponsored by liberal icon Chuck Schumer, and passed the Senate on a 97-3 vote. What the law did, was reestablish a balancing test for courts to use in religious liberty cases. In simple terms, Government may not place any ‘substantial burden on a person’s exercise of religion,’ unless the government can prove:
1. It is pursuing a “compelling government interest”
2. It is the “least restrictive means of furthering that compelling government interest.”
Essentially, the law nowhere states that anyone and everyone has a free pass to discriminate against anyone else. All it does is reaffirm the 1st Amendment of the Constitution, where everyone is entitled to the free exercise of religion, and further reaffirms a citizen’s right to defend themselves in a court of law. The law ironically does not make it easier for religious defendants. The burden is placed on the defendant to provide all of the evidence that the government is going out of their way to harm the citizen. Defendants have successfully used the law in some cases, and have not in others. Ironically, the landmark cases where RFRA has been successfully used, had nothing to do with Christianity or gay rights:
The court, referencing RFRA, decided that a Muslim prison inmate’s life in prison was “substantially burdened” by the prison refusing to provide him with a halal diet or halal chickens for the Eid-ul-Adha feast.
The court, citing RFRA, decided that a Native American was being “substantially burdened” by government regulation intended to protect Eagles, that prohibited the Native Americans from acquiring eagle feathers.
A New Mexican branch of the Brazilian church Uniao do Vegetal successfully appealed their case to the Supreme Court and won, claiming the government had “substantially burdened” them when the government seized a sacramental tea, which contained a controlled substance in its ingredients.
A unanimous Supreme Court recently also ruled under the RFRA that a Muslim prisoner was free to practice his faith by wearing a half-inch beard in jail.
In 2012, the Pennsylvania RFRA was successfully used by a Philadelphia church who wanted to feed the homeless in the city parks. For some reason, Democrat Mayor Michael Nutter wanted to stop the churches from feeding Philly’s homeless population.
So, now that we know the RFRA has nothing to do specifically with Christianity or anything specific against gays, why do states even need to pass their own RFRA’s, if there’s already a federal one in place?
Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections.
In fact, 31 states already have heightened protections for religious exercise. This is why I find the talk of these boycotts so ridiculous. Boycott all you like, but you’re quite the hypocrite if you boycott the state of Indiana, but don’t also boycott Pennsylvania, Florida, Texas, Washington, Connecticut, Maine, and all of the other states listed below:
Indiana’s RFRA just makes it clear that the federal law also applies to people engaged in business as well as citizens in private lawsuits. But again, remember the challenging task is left up to the citizen/defendant to prove that they have sincerely-held religious beliefs, and that those beliefs are being substantially burdened by the government. The irony is that until presently, it has always been understood that the federal law also applied to businesses and private lawsuits. It is in no way a free license to discriminate against anyone.
Ironically, champion of the law, Democratic Senator Chuck Shumer who sponsored the law in 1993, is quite silent right now, and has as of yet to agree to the requests for comment from the media on what the big deal is all about.
So why is everyone falsely claiming that Indiana’s law is an unprecedented attack on gays?
Quite simply, the answer is bad, false, and intentionally-misleading journalism.
For example, this CNN headline that falsely states that the law “allows biz to reject gay customers.”
Or this New York Times story that says the same, while ignoring that most other states and our own federal government already have the exact same law enacted.
Many in the media are honestly ignorant and don’t realize what the law actually states, but that still doesn’t excuse bad journalism. Others are willfully lying, in an attempt to smear certain politicians and ideologies.
Clearly, Mrs. Clinton knows the difference, and she knows what the law does and doesn’t do, especially since her husband gave that great speech affirming the necessity of the law and how it’s such a positive thing. The question remains why she would willingly and knowingly spread false information around then. I of course can’t say for sure, but it probably has something to do with pandering to her base, and the seemingly majority of Americans who are all falsely informed right now. And most of the rest of us are just willingly eating it up without bothering to check into it for ourselves.
The law does not give the right to discriminate.
Richard Garnett, law professor at the University of Notre Dame stated:
“It is unfortunate that the facts about how religious-accommodations laws actually work, and what they actually do, are too often buried by inaccurate criticisms, implausible predictions, and name-calling.”
Indiana University Maurer School of Law professor Daniel O. Conkle stated:
“I am a supporter of gay rights, including same-sex marriage. But as an informed legal scholar, I also support the proposed Indiana Religious Freedom Restoration Act (RFRA). How can this be? It’s because – despite all the rhetoric – the bill has little to do with same-sex marriage and everything to do with religious freedom…Granting religious believers legal consideration does not mean that their religious objections will always be upheld…they would have their day in court, as they should…A court could rule otherwise, protecting religious freedom in this distinctive context [of legal gay discrimination]. But to date, none has.“
In fact, if there actually are any businesses that falsely think the law gives them that right, and do use it as an excuse to refuse service to someone just for the heck of it, they will still lose in the courts.
No, a racist who claims to be a Christian cannot now refuse to serve an African-American. Especially since the Bible claims that we are all created equal. He can try, but he will still be sued and lose the case.
In fact, in the 22 years since RFRA became law nationally, there has not been one single case where it has allowed someone to discriminate someone else based off of their sexual orientation, or race.
Even in New Mexico, who also has a state RFRA, a Christian wedding photographer was sued after refusing to photograph a gay wedding for religious reasons. She cited the RFRA as her defense. And she still lost.
If you are in a fit of worried hysteria right now because you think this law gives people the right to discriminate against gays, blacks, Jews, or anyone, and that we’re being taken back decades, YOU ARE WRONG.
And if you think this law finally gives you the right to discriminate against types of people that you may not like, including gays, blacks, Muslims, etc, YOU ARE WRONG.
Anyone and everyone who chooses to continue to spread this false rhetoric on both sides is only furthering division in America, and trying to create controversy and hate when there is none.
The law only establishes a balancing test in the courts when religious folks are the defendants. The point of RFRA laws is not to discriminate against gay Americans or any type of Americans. It was created to prevent the government from discriminating against religious Americans.
Read my latest blog discussing Connecticut Governor Malloy’s decision to ban travel to the state of Indiana.
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