A Pennsylvania traffic law requires slow moving vehicles, including Amish buggies, to carry bright orange fluorescent warning signs. The Amish protest, saying that those signs equal technology forbidden by their religious beliefs. Some Indian tribes use peyote sacramentally, although peyote is a controlled substance, its use prohibited by federal law. A Moslem inmate in a state or federal penitentiary asks that a copy of the Quran be made available to him in the prison library, in addition to copies of Bible. A Sikh teenager wears his hair long and grows his beard, violating his American high school’s dress code.
These are all real-life examples of governmental infringements of religious liberty, exactly the sorts of things that a Religious Freedom Restoration Act, or RFRA, is intended to correct. It’s precisely to cover these sorts of issues that President Clinton signed the federal RFRA into law in 1993. It’s reasonable for the Amish buggie to use a lamp instead of a fluorescent sign, for an Indian holy man to dispense peyote, for a Moslem inmate to read his own scriptures and for a Sikh teen to follow the dictates of his faith. We might wonder if the First Amendment doesn’t provide sufficient protections for these sorts of religious practices. But no constitutional rights are absolute, and in 1990, in Employment Division v. Smith, the peyote case, SCOTUS ruled against the plaintiffs, but urged Congress to clarify the circumstances where a religious exception could be made to otherwise compelling government interests. That led to the federal RFRA. Then, in 1997, in City of Boerne v. Flores, SCOTUS limited the scope of the federal RFRA to federal cases, and urged states to craft their own RFRAs. Many have done so, though haphazardly and piecemeal. The point is this: RFRAs are not automatically sinister. As Vox.com recently pointed out, most of the cases in which RFRAs have been invoked have been ‘pretty vanilla.’ They serve a valuable, if minor, function, clarifying those few cases in which religious freedom and government interests collide.
Context matters, though. Boy, does it ever. As court after court has ruled in favor of marriage equality, some conservative legal scholars have begun to see RFRAs as a possible response to what they perceive as ‘the problem with gay marriage.’ The fear is that Christians who oppose homosexual conduct might be forced to, in some way, participate in gay weddings. A Christian baker might be forced to bake a wedding cake, a Christian photographer might be forced to take pictures, an anti-gay florist might be forced to provide flowers. It’s in that context that the Indiana legislature passed its RFRA, and Indiana Governor Mike Pence signed it into law last week. And . . . kerblooie.
On the one hand, I’m not sure I’d want a wedding cake baked by someone who I think might hate me. On the other hand, I’m not sure how a bakery stays in business turning down gigs. One would think that there’s some kind of national epidemic of intolerant bakers, florists and photographers. There isn’t; to the degree that the Indiana RFRA is actually meant to promote intolerance, it strikes me as comically ineffectual. In fact, my guess is that most folks in the wedding industry welcome gay marriage. Social change that expands my customer base? Bring it on!
Anyway, Pence has emerged as the villain of this piece. It turns out that he’s been saying nasty anti-gay things since he first ran for office in 2000. He’s also really really bad on-camera. Anyway, Pence insists that the purpose of the Indiana RFRA was never to allow private businesses or individuals to discriminate. That claim seems disingenuous. It’s not unusual for governors to invite supporters of any legislation to be there when it’s signed into law. The people at the signing of the Indiana bill included Eric Miller Executive Director of Advance America, who urged the Indiana Senate to sign the bill to protect ‘Christian individuals and Christian businesses’ from punishment if they chose to ‘follow their Biblical beliefs. Also at the signing, Micah Clark, executive director of the Indiana chapter of the American Family Association, who explained that any anti-discrimination language in the bill would ‘completely destroy’ it. It’s pretty clear how they all saw it: as a bill that would allow Christians to discriminate against LGBT people. This is anti-gay marriage backlash. And what we’re seeing in response is anti-backlash backlash.
And so, the good name of the State of Indiana (the state where I was raised, where I finished my PhD, a state I love as a second home), has become synonymous with bigotry. Business leaders across the state have condemned it. So did George Takei, who is now urging folks to boycott Indiana. (Gonna be tricky for me; I’m heading out there in a few weeks!). Pence hasn’t helped. He appeared on the ABC news show This Week With George Stephanopoulos. It did not go well.
Worst of all, the Indiana Pacers, of the NBA, have strongly condemned the bill. The finals of the NCAA men’s basketball tournament are scheduled this week in Indianapolis; the NCAA is seeking other venues. In other words, Pence, and the Indiana legislature have lost basketball. In Indiana. They’ve lost basketball.
No wonder the front page headline in this mornings Indianapolis Star was just three words long. Fix. This. Now.