New Indiana law: Does freedom of religion mean freedom to discriminate?

For many conservative religious Americans, the nation’s long-standing Religious Freedom Restoration Acts, including the one just passed in Indiana last week, could possibly carve out a public space that permits individuals and their businesses to uphold their religious opposition to same-sex marriage.

But as more same-sex couples across the country legally celebrate their nuptials with traditional public pomp and ceremony, the cherished right of freedom of religion has run headlong into the principle of nondiscrimination in the public sphere. 

As a result, a vexing national debate has begun to rage over the extent and legal limits of each side’s visions for the nation’s common life together – or how uncommon lives should interact within the public sphere.

“What we’re coming up against is: How far does secular law have to go to accommodate a person’s religion?” says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta. “And the truth is, this is happening across the country, even in places where there are no RFRAs,” or religious freedom restoration acts. 

The poster businesses for the debate have been flower shops, photographers, and bakers who offer services to couples planning their weddings – but object to providing these services to gay and lesbian couples, who can now legally marry in 37 states. The Supreme Court is expected to decide the issue by the end of the current term in June. 

The issue also includes the religious conscience of public clerks who issue marriage licenses, doctors or anesthesiologists who may tangentially participate in abortion procedures, or any other professionals who might object to participating in events that offend their deeply held religious beliefs.

But since Indiana became the 20th state to pass its version of a religious freedom restoration act last week, a widespread chorus of critics has objected to the new state law – or at least the perceived intentions behind it.

Believing it may indeed permit discrimination against lesbian and gay Americans, CEOs such as Apple’s Tim Cook, the governor of Connecticut, the mayor of Seattle, and organizations such as the NCAA and Gen Con have begun to rethink, or even curtail, their business relationships with the state. 

“These bills rationalize injustice by pretending to defend something many of us hold dear,” Mr. Cook, who is gay, wrote in an opinion piece in The Washington Post on Sunday. “They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.”

It’s a far cry from the overwhelming bipartisan consensus that first accompanied the original Religious Freedom Restoration Act in 1993. More than two decades ago, the federal version passed unanimously by voice vote in the House – yes, that’s right, unanimously – and with only three nays in the Senate before President Bill Clinton signed it into law.

At the time, a coalition of civil rights liberals and religious conservatives both sought to “restore” religious freedoms curtailed by the Supreme Court in the 1980s. The high court ruled that the nation’s general laws, such as its prohibitions against drugs, trumped Native American use of peyote in religious ceremonies, and allowed the expansion of federal projects onto sacred land. 

The federal law sought to protect religious minorities, restoring a “strict scrutiny” test that still provides the basic RFRA template, scholars say. Like Indiana’s, these laws forbid the government from placing a “substantial burden” on the free exercise of religion unless it can demonstrate a “compelling government interest” to do so. The burdens must also be the “least restrictive means” to achieve this interest.

Indeed, after the Supreme Court ruled the federal statute did not apply to the states, more liberal states like Connecticut, Rhode Island, and Illinois were the first to pass state RFRA laws.

But even then, the looming issue of gay rights and same-sex marriage began to tear apart the bipartisan coalition. Cases concerning the right of landlords to refuse leases for gay couples and the stirrings of legalizing gay marriage in Hawaii led the liberals to withdraw their support.

“Those two developments started to change the minds of civil rights groups on the question of religious freedom,” says Nelson Tebbe, professor of law and religion at Brooklyn Law School in New York. “They started to worry that religious freedom could be used not just a shield for religious minorities against the general laws, but as a sword by religious conservatives who wanted exemptions from civil rights laws.”

Such religious freedom legislation does not necessarily exempt religious people from nondiscrimination laws, scholars say. They simply put the burden on the state to show a “compelling government interest” when curtailing deeply held religious beliefs – and discrimination may very well be one.   

“As a society, we do that,” says Mr. Goldfeder. “At some point we say, as we said with Bob Jones University, listen, maybe it’s your religious belief to discriminate on the basis of race, but that’s no longer acceptable.”

“At some point we come to the idea that we decide as a society that there’s a compelling government interest that we don’t discriminate anymore,” he continues. “LGBT is not a protected class everywhere – though I think it should be – and the question we’re butting up against is exactly that: At what point does the line change, and we say, you can no longer do this? But because the line hasn’t changed everywhere, and yet public perception is changing, that’s why we now have this gray area.”

Last week, ​a Washington state ​florist who was sued by the state for refusing to serve a gay couple in 2013 was ordered to pay a ​$1,000 fine, plus $1 for court costs and fees.

Arlene's Flowers and Gifts owner Barronelle Stutzman was given 60 days to pay the state, the Associated Press reported. The fine was originally more than $2,000, but the state's Attorney General Bob Ferguson lowered the amount.

She wrote back.

“Washington's constitution guarantees us ‘freedom of conscience in all matters of religious sentiment.’ I cannot sell that precious freedom,” Ms. Stutzman's letter reads. “Your offer reveals that you don't really understand me or what this conflict is all about. It's about freedom, not money. I certainly don't relish the idea of losing my business, my home, and everything else that your lawsuit threatens to take from my family, but my freedom to honor God in doing what I do best is more important."

In the case of Indiana, some scholars see changes in the law as indicating an attempt to allow business owners the freedom to refuse services to a class of people on the basis of religious belief. It allows any person or business sued for discrimination to invoke religious freedom as a defense, which almost other RFRA laws apply only to cases in which the government is a party.

On Monday, Republican legislators in Indiana expressed surprise at the outrage their law has caused across the country. 

“It is not the intent of the law to discriminate against anyone, and it will not be allowed to discriminate against anyone,” David Long, president pro tem of the state Senate, said Monday at a news conference with Brian Bosma, speaker of the state House.
 
 “We hope to have a fix very soon,” Mr. Long said, adding that lawmakers hoped to “calm the seas here.” 

Scholars say religious freedom laws should now explicitly include principles of nondiscrimination.

“If you want to keep the conversation open, what you could do ... is add protective language into the bill that would affirmatively declare antidiscrimination a compelling governmental interest, says Goldfeder. “And that has the potential to completely change the conversation.”

Utah, one of the most religious states in the US, did something similar earlier this month, providing explicit legal protections for its LGBT residents, while shielding religious institutions that oppose homosexuality from prosecution. Instead of calling for boycotts, LGBT activists praised the bill as a possible way forward.

Republican Gov. Mike Pence said he would support legislative clarification of Indiana’s RFRA law, but he rejected protections for LGBT Hoosiers.

“I will not push for that,” Governor Pence said on ABC’s “This Week” on Sunday. “That’s not on my agenda and that's not been the – that's not been an objective of the people of the state of Indiana. And it doesn't have anything to do with this law.”