Conservatives seem to be legitimately confused about the backlash Indiana has faced this past week as a result of the ongoing kerfuffle over Indiana’s newly-enacted Religious Freedom Restoration Act.
In their eyes, a consortium of Big Gay, liberals, the media, and homosexual supremacists are all working together to pick on Christians in Indiana who want nothing more than to avoid baking cakes for a bunch of hellbound homosexuals.
For some reason, this tiny little law that was enacted to protect the religious freedom of God-fearing Hoosiers has sparked a culture war conflagration that threatens to burn everything and everyone in its path.
And for what?
All Indiana did was enact a law that has been around since Bill Clinton signed the federal version in 1993. Hell, even the ACLU supported the federal law, the Religious Freedom Restoration Act, or “RFRA” if you’re into the whole brevity thing.
RFRA has even helped people! People like Ariel Arocha, a young Native American boy who was told by school officials he would have to cut his hair before he could attend kindergarten. The boy and his parents sued the school district, claiming that the rule substantially burdened the boy’s religious freedom, and won the right for young Ariel to wear his hair long in keeping with his Native American religion.
Or Richard Barr, who offered men recently released from prison housing and religious instruction in two houses that he owned. After Sinton, a City in Texas, passed a zoning ordinance that precluded the use of his homes for that purpose and effectively banned his ministry from the city, Barr sued the city under Texas’ RFRA, arguing that the zoning ordinance was a substantial burden on his religious freedom. He won.
Then there’s the case of prisoner Abdul Muhammad: Conservatives love bringing up this particular case as if they give a single crap about the rights of Muslims generally, much less Muslim prisoners. Muhammad was prohibited from growing the ½ inch beard that his religion commanded while serving time in an Arkansas prison until the U.S. Supreme Court ruled in Holt v. Hobbs that the restriction was a substantial burden on his religious exercise under the Religious Land Use and Institutionalized Persons Act. (RLUIPA is a law materially similar to RFRA except it applies only to zoning laws and prisoners.)
One journalist seems particularly irritated by the hubbub that Indiana’s law has created.
In an article penned for The Federalist so rife with misinformation that irony collapsed, fell into a coma, and had to be put on life support, Mollie Hemingway writes that the media is “highly uninformed about the topic.” (Be sure to click the link for a truly breathtaking and blissfully self-unaware article entitled “Dumb, Uneducated, And Eager To Deceive: Media Coverage Of Religious Liberty In A Nutshell.”)
Hemingway doesn’t see what the big deal is. The federal RFRA was authored by Chuck Schumer, signed by Bill Clinton, and 20 states have passed their own versions of RFRA. “And yet,” Hemingway writes, “when Indiana passed the legislation last week, the media characterized it as nothing more than a bigoted anti-gay bill and celebrities and activists called for a boycott against the state.”
“If it’s not some new-fangled invention designed to hurt gay people, what is it about?” Hemingway asks before penning two-thousand words that conclusively demonstrate that she hasn’t a clue in the world what Indiana’s RFRA law is about.
Hemingway proceeds to describe in listicle form ten people who were helped by RFRA, including Muhammad Abdul, Ariel Arocha, and Robert Barr. “If you oppose Religious Freedom Restoration Acts, these are the real people you are hurting,” she chides.
Except no. Hemingway is wildly off-base.
It’s true that each of the ten people challenged a regulation that they believed substantially burdened their religious exercise. But that’s where the similarities end, because each of those ten people raised claims under versions of the Religious Freedom Restoration Act that are vastly different from the one that Gov. Pence signed last week. And had she bothered to do a modicum of research—Google really is your friend, Mollie—she could have saved herself some embarrassment.
Yesterday, Gov. Pence signed an amended RFRA that explicitly prohibits a provider of goods and services from refusing to provide goods or services to people based on a number of characteristics, including sexual orientation and gender identity.
But the pre-amendment RFRA made it possible for individuals to wield religious freedom cloaked in bigotry as a weapon against the LGBT community. A person who refused to provide services to a gay couple, claiming that to do so would violate his religious freedom, would have been able to raise RFRA as a defense to a civil rights claim brought by that gay couple.
Not so with the federal RFRA that Hemingway so wildly misinterprets.
“RFRA simply allows religious people to challenge government activities that encroach on their beliefs,” Hemingway writes.
That is certainly true of federal RFRA and most state RFRAs, including Texas’, which was the statute raised by Richard Barr, one of the innocents Hemingway claims will be damaged by liberal opposition to RFRAs generally.
But the versions of RFRA raised by each of the ten people described by Hemingway—people whose religious freedom was substantially burdened by a government regulation—do not permit an individual to raise RFRA as a defense to a discrimination claim brought by another individual.
As Micah Schwartzman et al. recently noted in Slate, Indiana’s pre-amendment version contains new statutory language that “explicitly permits a private party, including a for-profit corporation, to challenge on religious grounds any claim of discrimination brought by another private party, even when the government is not otherwise involved in the case.”
“This new statutory language is designed to ensure that a wedding photographer in Indiana would be protected if she discriminates against a same-sex couple.” (Emphases in original.)
Mollie Hemingway, therefore, is, in fact, absolutely and embarrassingly wrong.
But in fairness to her, she is not the only person who got Indiana’s pre-amendment RFRA all wrong.
Gov. Mike Pence himself was confused by the law, as evidenced by a recent statement he made defending it:
This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.
Sorry, Mike, but no.
The version that you originally signed applies to disputes between private parties whether or not government action is involved. It’s right there in Section 9 of the bill:
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. [Emphasis added.]
So you see, Mike, it makes sense that the federal RFRA “never undermined our nation’s anti-discrimination laws,” because federal RFRA does not contain the language in Indiana’s pre-amendment RFRA that permits private parties to undermine anti-discrimination laws.
Moreover, Mike, let’s not pretend that everyone in the country is on board when it comes to LGBT equality. Indiana itself does not prohibit statewide discrimination based on sexual orientation. So had the bill not been amended, it’s not entirely clear that Indiana courts would have protected LGBT plaintiffs who raised civil rights claims in court. I don’t know if you’ve noticed, but Indiana courts have been doing some pretty fucked up shit lately.
Besides, as Chris Savage recently pointed out in Eclectablog, State Senate Minority Leader Tim Lanane introduced an amendment that would have explicitly prohibited discrimination against the LGBT community. Guess what happened? It was defeated, 40 to 10, with the ten votes for LGBT protection coming from Democrats.
So, Mike, let’s not pretend that you and your Republican cohorts didn’t know exactly what you were doing when you signed this law. And let’s not pretend that liberals, and the ACLU, and anyone else who believes that gays, lesbians, bisexuals, and trans people are people are somehow hypocrites for opposing the Indiana RFRA law as it existed before it was amended.
The pre-amendment RFRA was designed to permit discrimination against a protected class. You just got caught out there with your pants down and had to fix it to save face. And as a result, the LGBT community in Arkansas and Georgia—which did not move forward with their anti-LGBT RFRA laws because of the fierce backlash in Indiana—thanks you for it. (Arkansas just enacted a RFRA law that expressly states that it is to be interpreted like the federal version, and Georgia’s RFRA is dead.)
And as for you, Ms. Hemingway? Before you pop off calling the media dumb, uneducated, and eager to deceive, it might behoove you to make sure you have your facts straight. Otherwise you just might end up with a severe case of foot-in-mouth disease. And nobody wants that.