Indiana RFRA - My POV

For the record, I am not a lawyer.  My father is, and he more or less promised me a parade and a lifetime supply of chocolate frosting if I would choose another career, ANY career, just please not the soul-sucking law.  Ever the dutiful daughter, I traded my dream of a JD for a couple of degrees in English.  I never got the parade or (far more tragically) the frosting.  I do, however, have a lingering fascination with Supreme Court decisions and any good, concise explanation of hearsay.  I wish I were kidding.

In any case, as a Hoosier, a liberal, and an LGBT ally, I have been clutching my tiny fists in frustration as I read various inaccurate statements about RFRA on Facebook.  This is my reply, intended mainly for my pals.

Although many commenters would like to suggest that the Indiana RFRA is just a parrot, squawking along with the old federal RFRA, that is a bit misleading.  Let's cover a bit of history by going back to meet Mr. Smith and Mr. Black, who hail from Oregon.

• Around the time I was graduating from high school, Smith and Black were fired from their jobs after failing a drug test that revealed they had used peyote.  When they filed for unemployment, the State of Oregon said, "No unemployment for you!  Failing a drug test is misconduct."  Smith and Black argued that since they had used peyote as part of religious services at the Native American Church, the State of Oregon was violating their rights under the First Amendment.  
• This case went all the way to the Supreme Court, which stated  in Employment Division v. Smith (1990) that "We have never held that an individual's religious beliefs . . . excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."
•  In sum, since the drug law in Oregon is valid, Smith and Black have to follow that law in the same way that everyone else has to follow that law, regardless of their religion.  You can learn more about all of that here.
• In the wake of Smith, there was a mighty uproar.  Conservative religious groups didn't like it.  Liberal religious groups didn't like it.  Religious groups, on the whole, didn't like it.  From that uproar, the Religious Freedom Restoration Act was born.  It said (I paraphrase), "Hey, man, even a law that is neutral - that is not aimed at religion - can violate someone's religious freedoms, and that's uncool.  We say the government can't violate those freedoms unless the government can show a compelling interest and lacks any better way to further that interest."  I'm pretty sure that's almost verbatim.
• The legal community took RFRA as something of a slap on the face.  If you look at pictures of Scalia from the time, you can kind of see Congress' handprint on his cheek.
• In 1997, however, the court struck back by ruling in City of Boerne v. Flores that Congress had exceeded its authority with RFRA.  After that, RFRA no longer applied to the states.  For more information on that, you can go here.
• As you might guess - or know - that ruling precipitated the passage of RFRAs in individual states.  According to this site, "By mid-2000, religious freedom restoration acts had been enacted in Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Rhode Island, South Carolina, and Texas."
• Now let's flash forward.   The issue of today is not peyote, or anything as abstract as freedom in general, but same-sex marriage, along with the photographer(s), baker(s), and florist(s) who refuse to provide services for same-sex weddings.  Put another way, the perceived government overreach in 1993 was the Supreme Court's unilateral application of drug laws, without respect for religion.  The perceived government overreach today lies in the "persecution" (and prosecution) of business owners who refuse to serve same-sex couples.
• I have read more than a dozen outraged defenses of business owners in the past several days, all based on the idea that you can do what you want in your own place, refusing service for any reason in the world, without even having to explain why.  It's simply not the case.  My husband and I are both self-employed, by the way, so we understand how hard it is, how endlessly long the days are, how ideas like "weekends" and "vacations" cease to apply as life becomes utterly dominated by work.  Still, all that hard work doesn't give anyone special rights.  If your business is open to the public, you have to serve the public.  You don't have any blanket "right" to  discriminate, because there are laws at both the Federal and the state level that prohibit discrimination against protected groups.  As a type, these are called "public accommodation" laws or statutes.  The Federally protected classes (for the purposes of public accommodation) are race, color, religion, and national origin.  At the state level, of course, it depends.  Here's a breakdown of that first wave of states to pass RFRA, as best I can gather:
• Illinois has made sexual orientation a protected class, which means that it is not lawful to discriminate against someone on that basis.  (For more information, see here.)
• Rhode Island has likewise made it unlawful to discriminate based on sexual orientation, as have Connecticut and New Mexico.
• Florida and Alabama have no public accommodations protections for LGBT residents.  Neither do South Carolina or Texas OR Indiana, although some specific cities in each state do.  (Of course, there was that Texas Republican who wanted to make it impossible for cities in Texas to enforce any local ordinance that protects LGBT residents, but that's a whole other conversation.)

Okay, so with all of that said, why is the left flipping out when Indiana didn't extend state-level protections to LGBT residents anyway?  And why is Indiana's RFRA causing more uproar than all the RFRAs that preceded it?

Every law has a context, and the context here - both locally and nationally - is one of increasing acceptance for gay marriage.  Courts are overturning or upholding decisions, almost always in favor of gay marriage.  At least in the secular set, the tide has turned.

I have read dozens, perhaps even scores of comments on Facebook, insisting that RFRA is "just" designed to protect religious liberty, and that there is no connection whatosever to gay marriage.  In that case, it seems odd that this is Advance America's marketing pitch for support of Indiana SB101:

SB 101 will help protect religious freedom in Indiana by providing protection for individuals with sincerely held religious beliefs, along with Christian businesses and churches.

SB 101 will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers).

Here are just 3 examples:

• Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
• A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
• A church should not be punished because they refuse to let the church be used for a homosexual wedding!

Forget that this last point is largely alarmist and pertains (as far as I can tell) to one (1) for-profit wedding chapel in Idaho, which (since it is a business) must abide by public accommodation laws.  Stories about the baker in Colorado, the photographer in New Mexico, and the florist in Washington are disproportionately hyped in the media and woven into a narrative of wide-scale Christan persecution, which has a lot of states rushing to pass RFRAs this year.  Indiana just happened to be first in line.  It's not that Indiana's RFRA is so shockingly different from those in every other state, although I did appreciate this discussion of how the Indiana description of "religion" is exceptionally broad.  Instead, it's that this RFRA feels like a backlash, a direct response to advances in marriage equality, or even (to borrow their term) a punishment.  On top of all that, of course, RFRA is not necessary.  Even in a state without a RFRA, it is possible to claim that providing services would violate your First Amendment rights.

Let's take the case of that baker in Colorado, Jack Phillips, who refused to make a cake for a same-sex couple's wedding.  Colorado's statute on this subject says, "It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation" (emphasis mine).  You can see the statute here.

Phillips claimed that he was not discriminating against the couple on the basis of their sexual orientation; he was following his religious convictions regarding same-sex weddings and exercising his First Amendment rights.  The judge shot down the first claim - i.e. that Phillips was not discriminating against same-sex individuals - on the grounds that only same-sex individuals have a same-sex wedding (or union, or commitment ceremony, for which Phillips agreed he would also refuse to bake a cake, illustrating that his objection was not solely to same-sex weddings).  As for the First Amendment claims, "The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like.  Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage.  After being refused, Complainants immediately left the shop.  For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious."

To address another point I've heard, here's this additional quote: "Finally, Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respondents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech."

I think it's well worth it to read the entire document, myself, but I am kind of a nerd that way.  If you do read it, you'll find that it contains a well-reasoned legal argument, and that it is at no time dismissive of Phillips' faith, only the use of that faith to try to excuse discrimination.