This post was subsequently updated through April, 5, 2015
The Indiana Religious Freedom Restoration Act was originally slightly broader than the federal RFRA, which some circuits have limited to apply only to federal laws (Josh Blackman provided a legal analysis here; CNN also had a balanced overview).
Indiana’s measure would, apparently, have allowed bakers and photographers to assert in their defense, if they found themselves in court being sued, a right to religious conscience—although it was by no means an automatic “get out of baking a cake” card. Blackman concluded:
I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.
According to CNN Legal Analyst Jeffrey Toobin, it’s likely that a refusal to serve a gay person wouldn’t have stood under the law, but a refusal to provide a service for a gay wedding could have.
In fact, Indiana was the 20th state to adopt a “religious freedom restoration” law, and they have not opened the floodgates to anti-LGBT discrimination.
Indiana doesn’t have a statewide LGBT nondiscrimination law, although some of its cities and counties do. So it was not the grand compromise we saw in Utah. It’s passage was, arguably, an overreaction to an overreaction (the idea that it advances the progressive cause to find small business providers with religious-based objections and force them to provide expressive services to same-sex weddings or face prosecution because now it’s our turn and serves ’em right). But hey, never let an opportunity for lucrative political hysteria go untapped.
More. Yes, you can be a supporter for LGBT rights, same-sex marriage, and religious freedom. What you can’t be is an authoritarian statist and a defender of liberty.
No over-reaction by progressives and LGBT activists? Via the Washington Post: 19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting.
Furthermore. Via Instapundit Glenn Reynolds:
Here’s the deal: (1) Indiana has gone from a swing state to a red state, so it’s fair game; and (2) Dems need something to agitate the base so it doesn’t pay attention to Iranian nukes, trashed email servers, and an overall culture of corruption. Those who join in are willing enablers.
Sounds about right. I’d add that with the fight for the freedom to marry just about won (assuming the Supreme Court does the right thing), activists are in dire need of new targets for their fundraising machines, and turning the tables on religious traditionalists is just the ticket.
Cato Institute Senior Fellow Michael Tanner blogs:
So, as a strong supporter of marriage equality and someone opposed to bigotry in all its forms, but also as a supporter of property rights and the freedom to associate (or not associate), how do I feel about Indiana’s new religious freedom law? The truth, not surprisingly, is that I’m somewhat torn. …
In the end, I think much of the commentary around Indiana’s law has been overly hysterical. That said, I would have voted “no.”
And another interesting post from the blog Bleeding Heart Libertarians:
As to private-sector discrimination, I’m of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake.
I’m not endorsing all the ideas in any of these posts, but they are examples of level-headed commentary of the kind you get outside the lockstep authoritarians of left and right.
Also, I like this comment left at Instapundit: “If I read this correctly, it has the effect of making [same-sex] weddings slightly less complicated. A wedding means fifty things to do, half of which are surprises. It’s a lot of stress. Now, because it would be useless, it is no longer necessary to spend time and effort prospecting for the most devout Christian baker or florist in a hundred miles. Saves that, anyway.” Indeed, one less thing.
Finally, from our own comments, Jorge observes:
[The] argument that this law only applies to gays is not credible. Having established that, we all know that the motivation is really about gay marriage. And you know what? That’s fine. Look, whether people agree with this or not, there is a social problem in this country about gays filing lawsuits against people who don’t want to participate in their weddings. Solving this problem puts states in a catch-22. If you pass a law that only applies to gays, that’s illegal discrimination. So it becomes necessary to create a law that serves the public good in a way that’s not discriminatory. Now people are saying they don’t like that law either. That’s just too bad. There is going to be law that solves the problem.
Is this problem ubiquitous? No. But have a number of small business providers in various states been sued by local authorities at the bequest of angry LGBT authoritarians and found themselves deep in debt and driven out of business for the “crime” of turning down gigs to provide creative services for same-sex weddings, which they feel would violate their religious faith, while self-righteous progressives clap and cheer? Yes.
David Brooks also gets it absolutely right:
The opponents [of Indiana’s statute] seem to be saying there is no valid tension between religious pluralism and equality. Claims of religious liberty are covers for anti-gay bigotry.
This deviation seems unwise both as a matter of pragmatics and as a matter of principle. In the first place, if there is no attempt to balance religious liberty and civil rights, the cause of gay rights will be associated with coercion, not liberation. Some people have lost their jobs for expressing opposition to gay marriage. There are too many stories like the Oregon bakery that may have to pay a $150,000 fine because it preferred not to bake a wedding cake for a same-sex ceremony. A movement that stands for tolerance does not want to be on the side of a government that compels a photographer who is an evangelical Christian to shoot a same-sex wedding that he would rather avoid.
And yet that’s exactly what LGBT authoritarians want and envision, and they have no shame about it, either.
Let’s keep it going. Viewpoints on the right that are still worth considering (oh no, he’s linked to websites WE DON’T Like!!!): Kevin D. Williamson on corporate cowardice:
There are three problems with rewarding those who use accusations of bigotry as a political cudgel. First, those who seek to protect religious liberties are not bigots, and going along with false accusations that they are makes one a party to a lie. Second, it is an excellent way to lose political contests, since there is almost nothing — up to and including requiring algebra classes — that the Left will not denounce as bigotry. Third, and related, it encourages those who cynically deploy accusations of bigotry for their own political ends.
More than a little truth here. And related, George Will on Tim Cook’s hypocrisy, with this added observation:
There are two important principles at stake here. One is the government should rarely, and only at extreme difficulty, compel people to take actions contrary to their consciences. The other is that when you open your doors to commerce you open them to everybody. That’s a simple thing. It goes back to the ’64 Civil Rights act, public accommodations section which is surely a great moment in American history. So, you kind of work this out, but the indignation isn’t helping.
But for the fundraisers, party hacks and others with self-serving (or marketing) agendas, fueling polarization is the very point.
Actually, it’s way beyond simply stoking polarization; it’s about inciting mob violence now.
Conor Friedersdorf asks: Should Mom-and-Pops that Forgo Gay Weddings Be Destroyed? Well, we know what LGBT progressives would answer.
I also believe that the position I’ll gladly serve any gay customers but I feel my faith compels me to refrain from catering a gay wedding is less hateful or intolerant than let’s go burn that family’s business to the ground.
(Check out the hateful comments when HuffPost Gay Voices ran its hatchet job on Memories Pizza.)
End Game: Capitulation to the mob. Small vendors in Indiana and elsewhere will be driven out of business unless they agree to provide creative services to same-sex weddings. What the authoritarians of the politically correct left won’t tell you is that ever constriction on liberty can come around and smack you in the face. First they came for the conservative Christians….