Democratic Connecticut Governor Dan Malloy just signed an executive order on Monday banning state-funded travel to Indiana, as a form of boycott for Indiana’s new RFRA (Religious Freedom Restoration Act).
Many who oppose Indiana’s new law are cheering his decision.
There’s only one problem… Connecticut already has their own RFRA law as well, and it’s much more burdensome than Indiana’s.
The state of Connecticut passed their own RFRA on June 29, 1993. You can read it in it’s entirety right here. What makes the whole gesture of a state boycott absurd is the fact that Connecticut’s RFRA provides much more freedom to religious defendants than Indiana’s does, or even the federal version of the law, unanimously passed by House and Senate Democrats, and signed into law by President Clinton.
(If you want a very thorough background and detailed explanation of RFRA laws, check out my recent post titled Explaining Indiana’s Religious Freedom Law that is currently going viral online.)
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.
The key phrase is ‘substantially burden.’ But there’s something a bit different with Connecticut’s version. Connecticut RFRA law states that government shall not “burden a person’s exercise of religion[.]”
Notice anything different? The word ‘substantially’ is not included. With the Federal and Indiana versions, the government may burden religious people and businesses, but not in any type of ‘substantial’ way. Connecticut law on the other hand doesn’t allow the government to burden religious people and businesses at all. Government is not allowed to burden religious folks, period. This means that Connecticut law provides substantially more religious freedoms to its citizens than Indiana or our own federal government.
In fact, as it has not been widely reported, 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:
A lot of people still falsely believe that RFRA laws are a free pass to legally discriminate against anyone of your choosing. They fear that because Indiana’s legislation also says businesses may use the RFRA as a defense, that we’re opening Pandora’s Box to a whole new world of discrimination. There’s just a few problems with that assessment though. To those making the argument that the original RFRA that the federal government passed in 1993 was never intended to be used for businesses or private suits, the Supreme Court apparently disagrees. The brief states:
I. Congress Explicitly Understood RFRA to Protect For-Profit Corporations and Their Owners
A. The Text and History of RFRA Show That All Claims Are Covered, Including Claims by For-Profit Corporations
1. The Statutory Text Provides for Universal Coverage
2. The Legislative History Confirms the Statutory Text
This means that it has been federal law all for the past 22 years that businesses and private parties can use the RFRA as a defense for discrimination. The argument that because the law specifically allows for private suits as well and will lead to discrimination, is also unfounded. Especially considering that in the state of Indiana, as well as 28 other states in the nation, there are no laws that prohibit discrimination based on sexual orientation at public accommodations. But ironically, we never hear of these instances happening. It already is legal for Indiana businesses to refuse service to gay folks. And yet, there’s been no talk of such things happening.
But how can this be? Discrimination such as this doesn’t regularly occur because the United States is a nation that overall is tolerant of gay people. Business practices that are commonly looked down upon generally lead to major backlash, protest, and boycott. Business owners understand this.
This is why the claim that Indiana’s RFRA legalizes discrimination is so absurd. It already is legal to discriminate in Indiana without consequence, and yet it is not some wide-spread, Jim-Crow, taking-us-back-decades pandemic.
What millions of Americans seem to still misunderstand is that RFRA laws do not give you the right to discriminate. All they do is reaffirm what the 1st Amendment of our Constitution says. It only establishes a balancing test in the courts, where the substantial burden is placed on the religious defendant, to prove without a shadow of a doubt that their own religious beliefs are clearly being violated. The law in no way grants any type of immunity or any guarantee of victory.
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.
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.“
When asked if these new RFRA laws can be attributed to some type of slippery slope argument, Stanford Law Professor Michael McConnell stated:
“If there were a slippery slope out there, we’d be at the bottom of it already.”
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.
The irony of these boycotts is the fact that more than half of the nation already has these heightened religious protections. You’re quite the hypocrite if you want to boycott Indiana, and not the rest of the nation. Especially for Connecticut. If Indiana’s law upsets you, Connecticut’s law should make you outraged, as it is actual law that there may be no burden whatsoever placed on businesses.
If you actually do understand what RFRA laws do and don’t do, and still think this is an absolutely horrible happening, then why are you cheering Connecticut right now and boycotting Indiana? If any state deserves the most anger, wouldn’t it be Connecticut, where literally anyone can claim that their religion is being burdened, even in the slightest way possible, and still win in court?
Connecticut Governor Malloy may think he’s making a principled stand on tolerance to show his base how much he is on their side, but if he doesn’t want to look like a complete hypocrite who is ignorant and unaware of his own state’s laws, he should probably take a step back.
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