New Indiana law: Does freedom of religion mean freedom to discriminate?
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| New York
For many conservative religious Americans, the nation鈥檚 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.听
As a result, a vexing national debate has begun to rage over the extent and legal limits of each side鈥檚 visions for the nation鈥檚 common life together 鈥 or how uncommon lives should interact within the public sphere.
鈥淲hat we鈥檙e coming up against is: How far does secular law have to go to accommodate a person鈥檚 religion?鈥 says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta. 鈥淎nd the truth is, this is happening across the country, even in places where there are no RFRAs,鈥 or religious freedom restoration acts.听
The poster businesses for the debate have been flower shops, photographers, and bakers who offer services to couples planning their weddings 鈥 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.听
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 last week, a widespread chorus of critics has objected to the new state law 鈥 or at least the perceived intentions behind it.
Believing it may indeed permit discrimination against lesbian and gay Americans, CEOs such as, the , the mayor of Seattle, and organizations such as the and Gen Con have begun to rethink, or even curtail, their business relationships with the state.听
鈥淭hese bills rationalize injustice by pretending to defend something many of us hold dear,鈥 Mr. Cook, who is gay, wrote in an in The Washington Post on Sunday. 鈥淭hey go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.鈥
It鈥檚 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 鈥 yes, that鈥檚 right, unanimously 鈥 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 鈥渞estore鈥 religious freedoms curtailed by the Supreme Court in the 1980s. The high court ruled that the nation鈥檚 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.听
The federal law sought to protect religious minorities, restoring a 鈥渟trict scrutiny鈥 test that still provides the basic RFRA template, scholars say. Like , these laws forbid the government from placing a 鈥渟ubstantial burden鈥 on the free exercise of religion unless it can demonstrate a 鈥渃ompelling government interest鈥 to do so. The burdens must also be the 鈥渓east restrictive means鈥 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.
鈥淭hose two developments started to change the minds of civil rights groups on the question of religious freedom,鈥 says Nelson Tebbe, professor of law and religion at Brooklyn Law School in New York. 鈥淭hey 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.鈥
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 鈥渃ompelling government interest鈥 when curtailing deeply held religious beliefs 鈥 and discrimination may very well be one. 听听
鈥淎s a society, we do that,鈥 says Mr. Goldfeder. 鈥淎t some point we say, as we said with Bob Jones University, listen, maybe it鈥檚 your religious belief to discriminate on the basis of race, but that鈥檚 no longer acceptable.鈥
鈥淎t some point we come to the idea that we decide as a society that there鈥檚 a compelling government interest that we don鈥檛 discriminate anymore,鈥 he continues. 鈥淟GBT is not a protected class everywhere 鈥 though I think it should be 鈥 and the question we鈥檙e 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鈥檛 changed everywhere, and yet public perception is changing, that鈥檚 why we now have this gray area.鈥
Last week, 鈥媋 Washington state 鈥媐lorist who was sued by the state for refusing to serve a gay couple in 2013 was ordered to pay a 鈥$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.
鈥淲ashington's constitution guarantees us 鈥榝reedom of conscience in all matters of religious sentiment.鈥 I cannot sell that precious freedom,鈥 Ms. Stutzman's . 鈥淵our 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 at the outrage their law has caused across the country.听
鈥淚t is not the intent of the law to discriminate against anyone, and it will not be allowed to discriminate against anyone,鈥 David Long, president pro tem of the state Senate, said Monday at a news conference with Brian Bosma, speaker of the state House.
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听鈥淲e hope to have a fix very soon,鈥 Mr. Long said, adding that lawmakers hoped to 鈥渃alm the seas here.鈥澨
Scholars say religious freedom laws should now explicitly include principles of nondiscrimination.
鈥淚f 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. 鈥淎nd that has the potential to completely change the conversation.鈥
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 滨苍诲颈补苍补鈥檚 RFRA law, but he rejected protections for LGBT Hoosiers.
鈥淚 will not push for that,鈥 Governor Pence said on ABC鈥檚 鈥淭his Week鈥 on Sunday. 鈥淭hat鈥檚 not on my agenda and that's not been the 鈥 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.鈥