Indiana Inhibited

Anti-Religion Forces Trump Religious Liberty in the Hoosier State

INDIANAPOLIS — After Indiana Gov. Mike Pence signed into law a religious-liberty bill on March 26, Father David Mary Engo and the Franciscan Brothers Minor received an uptick in inquiries — and not about vocations.

The inquiries were about claims by the bill’s opponents, who charged that it unjustly targeted homosexual persons.

“They’re mostly people who are concerned about this bill and think that it might lead to discrimination against homosexuals,” Father David Mary, the founder and superior of the order, told the Register of the calls and emails he got after Indiana passed its own version of the Religious Freedom Restoration Act (RFRA). The law is modeled on the federal RFRA that prevents the government from “substantially burdening” a person’s free exercise of religion and is the basis of legal challenges to the Health and Human Services’ contraception mandate.

At first, the connection between a friary in Fort Wayne and the statehouse in Indianapolis might not be apparent. But the presence of Father David Mary and a number of his religious brothers and sisters at the private bill signing — a picture of which was subsequently tweeted by the governor’s office — gave the Franciscan an opportunity to explain his support for the legislation to individuals who weren’t sure what to make of it.

But those quiet, one-on-one conversations appeared to have been no match for a well-orchestrated campaign by critics to frame the bill as a “license to discriminate” against same-sex couples.

Indeed, after Pence signed the bill, an array of powerful opponents — from Apple CEO Tim Cook to the NCAA, which held college basketball’s Final Four April 4-6 in Indianapolis — pushed to have it repealed or amended. They vowed to boycott the state until their concerns were addressed.

By Holy Thursday, Pence relented and agreed to have inserted into the law language that explicitly barred use of Indiana’s RFRA to shield discriminatory actions based on sexual orientation or gender identity.

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, was disappointed with the new language.

“The original RFRA would give people their day in court; the proposed ‘fix’ would be a green light for driving religious people out of business. Our society should not settle this issue by punishing religious people before they even have their day in court,” said Rienzi in a statement released after the news broke.

The Becket Fund, a public interest group, also represents EWTN in its legal challenge to the Health and Human Services’ contraceptive mandate. The Register is a service of EWTN.

The furor over the original Indiana RFRA law surprised some legal experts, who noted that the federal RFRA and the many state RFRAs had never been successfully used as the legal basis for justifying discrimination against anyone.

“They have no cases. They have no basis in experience for their license-to-discriminate charge,” Douglas Laycock, a leading expert on religious-freedom issues at the University of Virginia law school, told the Register in an email message. “No one has ever won an exemption from a discrimination law under a RFRA standard. … Only a handful of people have even tried, and they all lost.”

However, the legal record didn’t dissuade critics of the state law from asserting that it would permit businesses to deny services to same-sex couples and set a dangerous precedent for future litigation.

“These bills rationalize injustice by pretending to defend something many of us hold dear,” stated Cook in a Washington Post column that attacked Indiana’s RFRA.

That judgment was echoed in news headlines and social-media campaigns featuring celebrities and athletes. And the unexpected power of that 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.

Indeed, advocates for religious liberty confirm that much has changed since the federal RFRA was signed by President Bill Clinton in 1993 with broad bipartisan support.

At the time, liberals viewed it as needed protection for vulnerable religious minorities, who were denied the right to practice their faith.

But after Hobby Lobby successfully argued that the HHS mandate violated its rights as guaranteed under RFRA, partisan groups feared that such laws threated the advancement of abortion rights and “marriage equality.”

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.


The Critics’ Charges

Under RFRA, a religious believer has no guarantee that a court will decide in his favor: He is merely given the right to file suit.

Still, critics of Indiana’s RFRA asserted that while the law was modeled on the federal RFRA, it was more extreme — because it could 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 in the immediate aftermath of the bill signing.

But UVA’s Laycock noted that the federal RFRA also allows 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 religious believer arguing that his or her rights, as guaranteed under RFRA, had been violated.

The Becket Fund’s Rienzi echoed Laycock’s assertion that critics’ claims were not based on the law’s history, and thus the “fix” was unnecessary.

“The key disagreement is over what should happen in a very small class of cases where individuals are asked to participate in a same-sex wedding in violation of their religious beliefs,” noted Rienzi.

“In that situation, there are two possibilities: (1) Our government can drive religious people out of business, fine them, and possibly even imprison them; or (2) our government can say that these religious people deserve a day in court and that courts should carefully balance religious liberty with other competing values.”


Changing Political Culture

But legal scholars like Laycock and Rienzi did not succeed in tamping down the furor stirred up by opponents of Indiana’s RFRA.

The critics got their way.

“The ‘fix’ we have is disastrous. It goes way, way beyond the alleged defects,” said Gerard Bradley, a constitutional scholar at the University of Notre Dame’s law school.

The amended law, said Bradley, offers only “a tiny exception just for churches and integrated auxiliaries.

“The ‘fix’ is the first use of the terms ‘sexual orientation’ and ‘gender identity’ in a state law in Indiana. But these terms are not defined in the ‘fix,’ despite the fact that anyone who follows this stuff knows that they are remarkably fluid,” he added.

“Finally, the ‘fix’ inexplicably includes religion among the grounds that are not protected by this religious-freedom law.” 

Bradley said he “advised one key legislator that it would be better to vote to repeal the whole RFRA than to vote for this ‘fix,’ but that advice was not heeded.”

Looking back at the circumstances that produced the “fix,” religious-freedom advocates worry that the aggressive tone of the debate marks a disturbing trend 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 before the new language was added to Indiana’s RFRA.

“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 [over things] as fundamental as the definition of marriage.”

National GOP leaders echoed this belief and backed Indiana’s law.

But Pence’s decision to back down and incorporate the new language, when confronted with the threat of a boycott that could damage the state’s economy, highlighted the growing impact of a homosexual-rights movement fueled by passion, commitment and, increasingly, powerful allies in the business, sports and entertainment sectors.

The lopsided debate has stirred the concerns of legal experts like Notre Dame’s Bradley.

“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,’” said Bradley. “But this is no concession or act of generosity at all, for the First Amendment already establishes that much protection. 


Supreme Court Decision

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 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.

In a column in The New York Times, Ross Douthat noted that the goals and rhetoric of the “marriage equality” movement have shifted with astonishing speed. Barack Obama drew no public censure when he opposed any change in the nation’s marriage laws during his first presidential campaign. 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 statuses or academic accreditation.

Within days of Pence signing the amended RFRA bill, critics of the legislation had floated such proposals on Twitter.


Indiana Pizzeria

Meanwhile, the Christian owners of a small-town pizza shop in eastern Indiana were forced to close, at least temporarily, after they were besieged by homosexual-rights supporters and received death threats. The family became a target after they were interviewed by a TV reporter who asked if they would provide pizzas for a same-sex wedding. The family said they had no problem serving same-sex couples pizzas, but they wouldn’t cater their weddings.

Apparently, the television reporter had chosen the pizza parlor arbitrarily and initiated the interview. But the manufactured story about a theoretical denial of service was enough to provoke some to threaten to burn down the small business.

“If all the fury directed at religious believers could be pressed into a single word, as it can, that word would … be sex,” wrote 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 children who died in abortion and 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.”