The reaction to the Indiana Legislature’s enactment of a generic religious liberty law seems increasingly unhinged. The long knives of business, entertainment and political elites are coming out. Even, amusingly, “gamers.” This does little to assuage concerns that proponents of sexual revolution are motivated by animus towards people of faith.
The basic reality is that the law passed by Indiana is almost the same as a law approved by the U.S. Congress in 1993 with overwhelming bipartisan support. The bill simply directs courts considering religious liberty claims to ensure that when the government, or a private party bringing a lawsuit, does something that creates a “substantial burden” on the exercise of religion, it is doing so to further a “compelling interest” in the narrowest way possible to protect that interest. At least 19 other states have similar laws.
Indeed, the legal rule codified in Religious Freedom Restoration Acts reflects the U.S. Supreme Court’s interpretation of the First Amendment for decades (before the court abandoned the principle). The federal RFRA was Congress’s attempt to restore the old rule.
Law professor Daniel O. Conkle, who notes his own support for gay rights and same-sex marriage, showed great integrity recently by pointing out that labeling Indiana’s law “a license to discriminate” does not comport with reality.
One will search far and wide for any example of people being thrown out of restaurants because of a state or federal Religious Freedom Act, though that is being urged as a foregone conclusion by opponents of the law. Why would Indiana’s law create a different result than any other state’s laws, or the federal government’s for that matter? As Stanford Law Professor Michael McConnell notes: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”
In fact, Professor McConnell and Professor Conkle both note that courts are likely to prioritize discrimination laws over religious liberty if there were to be a conflict.
That may be why Utah opted to pursue a different approach to religious liberty protections this last session. Rather than leave to courts to balance religious liberty with conflicting claims, Utah’s law straightforwardly limited the application of laws that might otherwise impact religious liberties to prevent the litigation in the first place.
But whatever approach a state chooses: stating a principle for courts to apply, like Indiana, or creating rules to prevent attacks, like Utah — protecting religious liberty is not an attack on the rights of others, whatever demagogues may claim to the contrary.