INDIANAPOLIS — Douglas Laycock, a leading expert on religious freedom issues at the University of Virginia law school, is perplexed by the explosive attacks against Indiana’s Religious Freedom Restoration Act, signed into law by Gov. Mike Pence last week.
The national campaign against the law has escalated over the past couple of days, with the White House, tech business leaders, and even the NCAA — which is slated to host the Final Four April 4-6 in Indianapolis — framing the law as a “license to discriminate” against same-sex couples. Critics have vowed to boycott the state until the law is repealed.
Laycock happens to support “marriage equality.” But he stressed that Indiana’s law, which is modeled on the federal RFRA and other state RFRAs, doesn’t pose any new threat to the civil rights of anyone, because such laws have never been successfully used to shield discrimination.
“They have no cases. They have no basis in experience for their license-to-discriminate charge,” Laycock stated in an email message to the Register.
“No one has ever won an exemption from a discrimination law under a RFRA standard — not the federal RFRA, not a state RFRA, not a state or constitution interpreted to mean the RFRA standard. Only a handful of people have even tried, and they all lost,” he said.
So how to explain this comment from Apple CEO Tim Cook?
“These bills rationalize injustice by pretending to defend something many of us hold dear,” stated Cook in a Washington Post op-ed that attacked Indiana’ RFRA.
“They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality.”
Legal experts like Laycock are primarily concerned about clearing up any confusion about the law, and what it intends.
The federal RFRA directs government to avoid enacting laws that excessively burden religious freedom without a “compelling interest.” When that interest has been established, the state must also chose the “least restrictive” means to advance its interest.
But the multilayered backlash to Indiana’s RFRA has also raised questions about the future of religious freedom in an age that has dramatically elevated sexual rights.
Thus, while some speculate that the controversy has been manufactured by partisan groups for political gain, experts also warn that it should be a wake up call for Americans, who revere religious liberty.
The Critics’ Charges
Critics of the law have asserted that while Indiana RFRA’s language may be similar to the federal RFRA — signed into law without incident by President Bill Clinton — it is more extreme because it can be cited in disputes between individuals as well as those between an individual and the state.
“[T]he bill enacted in Indiana last week … say[s] individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law,” said Apple’s Cook, who described such language as “dangerous” in his Washington Post column.
But Laycock noted that the federal RFRA also allowed for a variety of scenarios, including lawsuits involving two individuals.
“The federal RFRA was clearly intended to provide a possible defense (subject, as always, to the compelling interest test) when a religious organization or believer is sued, whether by a government or a private citizen.
“The statute specifically mentioned relief against a government, because of concerns about sovereign immunity (the rule that you usually can’t sue a state). And that created an ambiguity; did it mean only against a government?” said Laycock, citing the drafting history of RFRA laws by various state legislatures.
“Most states copied the federal language, and copied the ambiguity. And the New Mexico Supreme Court took advantage of that, and said no RFRA defense in a suit by a private citizen.”
The drafters of the Indiana bill decided to address that ambiguity, he noted.
“If your church is feeding the homeless, and the neighbors don’t like it, it really doesn’t matter whether you get sued by the neighbors or by the city,” said Laycock, outlining two different disputes that could result in a defendant arguing that his or her rights, as guaranteed under RFRA, had been violated.
Gay rights groups, which have called for the repeal of Indiana’s RFRA, also note that the state’s anti-discrimination statutes do not include sexual orientation as a protected class, and thus same-sex couples are more likely to become targets.
But Laycock said this argument made no sense, and that the facts on the ground in Indiana already show there has been no significant effort to discriminate against homosexuals.
“If there is no gay rights law in place, there is nothing for anyone to be exempted from,” he pointed out.
“It is already entirely legal to refuse to serve gays and lesbians in Indiana. RFRA wouldn’t change that even if there were any history of RFRA exemptions from discrimination laws."
Laycock also noted that there were local gay-rights protections in Indianapolis, Bloomington, and South Bend, and so defendants could theoretically seek exemptions from those laws.
“But again, no one has ever succeeded with such an argument — not even very small vendors in the wedding business, which is the most sympathetic case,” he explained.
Changing Political Culture
Legal scholars like Laycock may succeed in in tamping down the hysteria that has been stirred up over the past week. But some experts believe the controversy will not be easy to quell, and worry that it marks disturbing changes in the nation’s political culture.
“The opponents seem to be saying there is no valid tension between religious pluralism and equality. Claims of religious liberty are covers for anti-gay bigotry,” noted David Brooks in a March 31 column in The New York Times.
Brooks rejected this approach as counterproductive for the “marriage equality” movement that could end up antagonizing potential allies. But he also said it violated the nation’s tradition of respect for religious liberty.
“As a matter of principle, it is simply the case that religious liberty is a value deserving our deepest respect, even in cases where it leads to disagreements as fundamental as the definition of marriage.”
National GOP leaders have echoed this belief and backed Indiana’s law. And Indiana’s Gov. Pence has vowed that he will not back down from defending the law.
But Pence has directed state legislature to include additional language clarifying that the law does not intend to permit discrimination.
It is not clear whether opponents of the law will be pacified by such language, and its supporters fear that the governor may, indeed, back down when faced with threats of boycotts that could harm the state’s economy.
Meanwhile, the lop-sided debate has stirred concerns of legal experts who support robust religious freedom protections during a time of shifting social values, marked by the advance of “marriage equality.”
“It is and has been for a while apparent that at least the leaders of the same-sex ‘marriage’ campaign intend to tolerate no exceptions or accommodations to their program of indoctrination, save that they accept that religious officials and churches — in their strictly religious capacities — will not be required to operationalize same-sex ‘marriage,’” Gerard Bradley, a professor at the University of Notre Dame law school, told the Register. “But this is no concession or act of generosity at all, for the First Amendment already establishes that much protection.
“The leaders of the same-sex ‘marriage’ movement have thus made the whole idea of finding a middle ground a pipe-dream.”
Supreme Court Decision Pending
Now, as Bradley awaits the U.S. Supreme Court’s likely decision to legalize same-sex “marriage” by the end of June, he fears that after such a landmark ruling, the “campaign of intolerance being carried on by the same-sex ‘marriage’ movement — and, more importantly, by less ideological but nonetheless intolerant forces such as business interests — will kick into higher gear.”
Bradley questions whether conservative political leaders or religious leaders have fully considered the likely consequences of making same-sex “marriage” the law of the land.
“Very few have taken clear-headed measure of this looming tsunami of hate and intolerance,” he commented.
Indeed, while Gov. Pence faces off against opponents of Indiana’s RFRA, including thousands that have protested the law at the state capital, Catholic schools have become another staging ground for the advancement of “marriage equality.”
In New Jersey, a Catholic teacher who worked at a Church-affiliated school for 30 years and won an award from the local bishop for her service, was attacked by homosexual activists for criticizing their movement on her Facebook page, and then summarily suspended.
In San Francisco, students, parents, and teachers at four Catholic high schools have attacked Archbishop Salvatore Cordileone’s efforts to introduce language in teacher contracts and handbooks that affirms church teaching on sexual ethics. The archbishop’s opponents assert that his policy will undermine the “inclusive” ethos of their schools, and city officials have endorsed their stance.
In a column in The New York Times, Ross Douthat noted that the goals and rhetoric of the"marriage equality" movement have shifted with astontishing speed. Barack Obama drew no public censure when he opposed any change in the nation's marriage laws during his first presidential compaign, but now, vendors who hold that position can lose their businesses.
Today, liberal activists equate the religious conservative position on same-sex "marriage" with Jim Crow-era segregation in the South, and so Douthat asked whether churches and religious colleges that uphold a traditional definition of marriage, and only condone heterosexual marital relations could possibly lose their tax exempt status or academic accreditation?
Sexual Revolution’s Aftermath
“If all the fury directed at religious believers could be pressed into a single word, as it can, that word would… be sex,” writes Mary Eberstadt in an essay on “The New Intolerance” in the March issue of First Things.
Christianity’s “single most deadly enemy in our time, the one with which it is locked in mortal combat, is not the stuff of the philosophy common room. It is instead the sexual revolution.”
The intimidating tactics of the new intolerance, suggested Eberstadt, will tempt many religious believers and institutions to censor their beliefs — even though churches that have done so are “dying.”
But she also predicted that victims of the sexual revolution — women who grieve the unborn child that died in an abortion, men who have been addicted to pornography — will emerge as its most powerful opponents.
“They are part of the growing coalition of people who defend faith in all its thorniness not because they have known nothing else, but precisely because they do know the revolution,” said Eberstadt.
“And they reject the idea of marching in lockstep with it.”
Joan Frawley Desmond is the Register’s senior editor.