Two people have just submitted anonymous comments in response to my popular post titled: “Explaining Indiana’s Religious Freedom Law.” To be completely honest and objective, I’ve posted both of their comments in their entirety below:
How do you square your “legal” explanation with what is the real intent of the Indiana Law particularly when the Constitution already covers the Indiana law? Here is what is coming from Indiana via NPR.
Religion News says: “Supporters of the law say it will keep government entities from forcing business owners — such as bakeries and florists who don’t want to provide services to gay couples — from acting in ways contrary to strongly held religious beliefs. Gay marriage became legal in Indiana last year following an appellate court ruling.”
However, the law’s application could go beyond same-sex couples. During debate on the legislation, state Rep. Bruce Borders cited the example of an anesthesiologist who objected to putting under a woman who was preparing to undergo an abortion.
According to The Indianapolis Star: “The proposal is modeled on a 22-year-old federal law known as the Religious Freedom and Restoration Act. That law played a key role in the U.S. Supreme Court’s decision that allowed Hobby Lobby and other closely held corporations with religious objections to opt out of an Affordable Care Act requirement that they cover certain contraceptives for women.”
Here’s the thing about your piece about the recent Indiana legislation. Great writing and interpretation of the legislation. However, here’s where you fail to see the correlation between the law and the LGBT community. Indiana has legalized same-sex marriage. With that and any other LGBT equality legislation that would be passed in Indiana, while those provisions may be legalized, anyone could then claim that their religious freedom, as protected by RFRA, has been infringed upon. The “bakers, florists, and photographers” and other religious freedom-seeking “persons” that this RFRA protects, could then engage in de jure discrimination.
Indiana’s legalization of gay marriage in 2014 caused a stir amongst the state’s Christian-Conservatives. These “persons” can now legally pull out RFRA, because a “government entity” has “substantially burden[ed] [their] exercise of religion even if the burden results from a rule of general applicability.” (see “Indiana Senate Enrolled Act No. 101, Chapter 9, section 6-8” for the definitions of “persons” and “government entity” and source material of the text.)
No, this legislation doesn’t explicitly legalize discrimination. But, Americans have a tendency to have loose interpretations of the laws. Either side of the aisle will have a different interpretation of the law; one side will see religious freedom, the other an avenue for discrimination.
It doesn’t matter what the ‘intent’ of any law is. Many times throughout history, politicians have passed laws with a specific intent, only to find the truth of the law may be something quite different. The most famous recent example is the Affordable Care Act. President Obama repeatedly famously promised:
- If you like your doctor, you can keep your doctor.
- Family premiums will be lowered by approximately $2,500 per year
- This law will not add ‘one dime’ to the federal deficit
The reality is quite different. Although the ‘intent’ may have been one thing, the outcome is quite another. Regardless of where you stand on the ACA, the reality is that:
- Millions of Americans have lost their health insurance, even though they were completely satisfied with what they had.
- For millions of Americans, their premiums were not lowered, but increased by $5,000 per year. That means the President’s promise was an astounding $7,500 off target.
- The ACA’s long-term cost is now estimated to add as much as $6.2 Trillion to the federal deficit over the next 75 years.
Now, whether the President’s intent was pure or not is up for debate, but the reality is quite different than what was promised to be the ‘intent’ of the law.
Is it true that this law gives Christian business owners a right to discriminate against gays? Absolutely not. I refer you to the original post in question where 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, 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 state’s RFRA as her defense. And she still lost.
The fact of the matter is that the law never legalized discrimination. It only reaffirms the 1st Amendment, citing every citizen’s right to freedom of religion, and their right to defend themselves in a court of law. As has been seen in cases over the past 22 years since the federal RFRA’s passage, just about every case has not even been about anything involving gay rights. And as New Mexico has demonstrated, even in the one instance so far where a Christian has tried to use the RFRA as a defense, she still lost.
There may be citizens in Indiana who passed the law with a certain intent, but as history has shown at least thus far, it does not matter, and they may be in for a surprise should they try to use the RFRA as a defense of discrimination in court.
Could things change in the future? Sure. But crying wolf doesn’t help anything. We have a system of checks and balances for a reason. When bad laws are passed, if enough of the public and then the legislature in the future agrees, changes can be made and laws can be repealed, as has happened countless times throughout history.
As Abraham Lincoln famously said:
“The best way to get a bad law repealed is to enforce it strictly.”