The Indiana Religious Freedom Restoration Act is slightly broader than the federal RFRA, which some circuits have limited to apply only to federal laws (Josh Blackman provides a legal analysis here; CNN also has a balanced overview).
Indiana’s measure would, apparently, allow bakers and photographers to assert in their defense, if they find themselves in court being sued, a right to religious conscience—although it’s by no means an automatic “get out of baking a cake” card. Blackman concludes:
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 stand under the law, but a refusal to provide a service for a gay wedding would.
In fact, Indiana is 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 do. So it’s not the grand compromise we saw in Utah. It is, 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. 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.