Commentary on Indiana, Religious Freedom, and Gay Rights: How Anti-Gay "Religious Liberty" Laws Differ from RFRA

It's this important. Tuesday's front page. #rfra pic.twitter.com/gVPf82J2iu
— Mark Alesia (@markalesia) March 31, 2015

A selection of excerpts from articles discussing Indiana's (and other states') anti-gay "religious freedom" law(s) — especially the bogus talking point now widely circulated by both conservatives and centrists that these state laws don't differ from the federal Religious Freedom Restoration Act (RFRA):

Ed Pilkington for The Guardian:

Republican-controlled legislatures have introduced more than 85 anti-gay bills in 28 separate states, according to the Human Rights Campaign, the largest LGBT-rights advocacy group in the US. New laws targeting gay couples have been passed in Indiana, Arkansas and Mississippi, with many other states attempting to follow suit. . . . 

SB 202 declares an "emergency" that it says must be addressed in the name of "the public peace, health and safety". It says that it is "immediately necessary to create uniformity regarding discrimination laws across the state" – which is ironic because Arkansas at state level has no anti-discrimination laws relating to gay people. 

In effect Arkansas, as well as Tennessee and West Virginia, which are pursuing similar laws, are saying that discrimination against the LGBT community must be allowed to take place in every corner of their territory.

Daniel Strauss in Talking Points Memo: 

Pence's latest move is consistent with his background of opposing gay rights legislation and championing "traditional" marriage. 

David Badash at The New Civil Rights Movement: 

Governor Mike Pence says the Indiana Religious Freedom Restoration Act "isn't about discrimination." He's lying. And he's literally surrounded by professional anti-gay activists.

Brian Tashman for Right Wing Watch:

Micah Clark of the American Family Association’s Indiana chapter, who stood right behind Pence, along with several other Religious Right leaders, when he signed the bill into law and has quite a record of anti-gay activism, said today that he opposes any such clarification. 

He told AFA President Tim Wildmon today that conservatives should call Pence and other state officials and demand that they oppose any effort to clarify that the law does not legalize discrimination: That could totally destroy this bill. 

William C. Rhoden in New York Times: 

Pence sounds like just another in the string of segregationists from an earlier era: George Wallace, the governor of Alabama; Lester Maddox, the governor of Georgia; and Orval Faubus, the governor of Arkansas. They said marches against their segregationist policies were a result of outside agitators, often implying that the blacks in their states were content with the status quo. 

The problem, to them, wasn’t racism; the problem was outsiders.

New York Times editorializes: 

But nobody is fooled as to the law's underlying purpose. As its most prominent backers have said quite clearly, it is meant to protect "Christian businesses and churches from those supporting homosexual marriages." In other words, it should allow them to refuse service to gay couples.

Carlos Maza for Media Matters:

Fox News anchor Bret Baier debunked the network's defense of Indiana's discriminatory "religious freedom" law, explaining that the law is broader than both federal law and similar measures in other states.  

Alex Kaplan at Media Matters:

Right-wing radio host Hugh Hewitt allowed former Florida Governor and potential 2016 GOP presidential candidate Jeb Bush to make false claims on his radio program about Indiana's recently passed "Religious Freedom Restoration Act" (RFRA) without challenging Bush's statements, and was wrong about the law himself. . . .  

Contrary to Hewitt's and Bush's claims, neither other state RFRAs nor the federal RFRA have the same reach as Indiana's law, which explicitly includes corporations as opposed to only people, and allows religious beliefs to be used as a legal defense against an anti-discrimination claim in civil cases even when the government is not involved. 

Josh Marshall for Talking Points Memo: 

The fact that other states have so called "religious freedom restoration acts" is at best misleading. The movement to push these laws goes back at least two decades. But until quite recently they were not specifically, almost exclusively, focused on gays and lesbians. Two things have changed. In the last eighteen months, social conservatives have recognized that they've lost the public battle over gay rights. Marriage equality will almost certainly be the law of the land nationwide in the near future. And the rulings that set the stage for that change will likely knock down all remaining legally sanctioned discrimination against gays and lesbians in the coming years. So social conservatives have retreated to a defensive action of accepting legally sanctioned equality but trying to create a carve out of discrimination under the guise of 'religious liberty.'

Judd Legum at Think Progress: 

Claiming that the Indiana law is just like the laws in 19 other states, however, is simply not true. Other states are following Indiana’s lead and broadening the language of the law.

Why the change? Beyond the substance, the politics of the RFRA has become much different. When the federal law was signed in 1993, it was thought “to be about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks.” Today, Indiana’s law is driven “by the politics of anti-gay backlash. Their most ardent supporters come from an increasingly angry, marginalized, and shrill subset of Christian conservative activists.”

John Walsh for Salon: 

Yes, 19 states and the federal government have laws that contain some type of language prohibiting government from “substantially burdening” someone’s exercise of religion without a “compelling government interest.” But so far only Indiana’s allows a private citizen who believes their religious freedom is burdened by being forced to provide service to a class of private citizens – most commonly, LGBT Americans — to therefore legally deny those individuals service.

Jon Green for Americablog: 

This law was not lobbied for by business leaders who are concerned about their ability to practice their religion. In fact, practically every businessperson who has been asked has said that they think laws like these are awful ideas. Instead, Indiana’s RFRA was championed by professional discriminators at hate groups such as the American Family Association, Indiana Family Institute and Advance America to make sure that amateur discriminators can be jerks to their fellow citizens with the law, to say nothing of God, on their side.

Ian Millheiser at Think Progress: 

In 1999, in other words, religious liberty was widely understood to be limited by the rights of others — and the idea that an appeal to religion could be used to overcome an anti-discrimination law was rejected even by George W. Bush. In 2015, by contrast, social conservatives are openly striving for a world where they can opt out of civil rights law that they object to on religious grounds.

Sarah Posner at Religion Dispatches: 

Unlike the federal RFRA, and state RFRAs in fact modeled on it, the Indiana RFRA appears to permit a religious freedom claim or defense to be used in suits between private parties. Such suits could include claims by, say, a lesbian couple denied service by a baker who refuses to make a cake for a same-sex wedding. . . . 

As Micah Schwartzman, Nelson Tebbe, and Robert Tuttle explain at Slate, the entire purpose of the new law was to permit businesses, like caterers and photographers, to refuse service to same-sex couples.

Garrett Epps in The Atlantic: 

The problem with this statement [i.e., Hunter Schwartz's claim that there's no difference between the Indiana law and the RFRA[ 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.) . . .  

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.

Steve Benen at Maddow Blog: 

The scope and scale of the criticism continues to reach new heights. Private-sector leaders are demanding action; other states are launching boycotts; entertainers are canceling shows, and some Indiana communities are taking action on their own in the hopes of preventing discrimination. 

But while much of the American mainstream moves in one direction, Republican presidential candidates are quickly scurrying in in the other direction.

AP by way of Huffington Post: 

[Apple CEO Tim] Cook said in his criticism of religious objection laws that he has great respect for religious freedom, but that it can never be "used as an excuse to discriminate." 

The legislation is not a political or religious issue, but rather "about how we treat each other as human beings," Cook said. 

"Opposing discrimination takes courage. With the lives and dignity of so many people at stake, it's time for all of us to be courageous," Cook said.

Ken Briggs in National Catholic Reporter: 

Today's Chronicle of Higher Education reports that three prominent colleges in the state have protested the law: Indiana University, Butler University and DePauw University. Conspicuously missing is any Catholic college or university, most notably Notre Dame.

The tweet by Mark Alesia at the head of the posting reproduces today's front page in the Indianapolis Star.