Once again, a sliver of 2.3% of the population is trying to intimidate the rest of us

Posted on by

The lefties tried to suggest that North Carolina’s approval of an amendment to its state constitution defining marriage as between mrniceone man and one woman was going to be an economic development nightmare. Companies were going to run away from North Carolina due to its “bigotry”, we were told.  When that scenario didn’t materialize, the leftist goons picked up their marbles and ran crying to a friendly federal judge who pulled a reason to overturn the amendment straight out of his rectum. 

The same broken record — that didn’t play in North Carolina — is now being spun in Indiana.  State leaders there passed a Religious Freedom Restoration Act that the left is denouncing as the second coming of Apartheid.  Of course, the media is aiding and abetting the misinformation campaign — as they did here in the Tar Heel State.  But we did some digging and found out that  — SURPRISE — the RFRA is nowhere near as scary as the drivebys want us to believe:

On Thursday, Indiana governor Mike Pence signed the Religious Freedom Restoration Act (RFRA) into law, and some celebrities, politicians, and journalists–including Miley Cyrus, Ashton Kutcher, and Hillary Clinton, just to name a few–are absolutely outraged. […]

Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded travel to the state. 

That’s right.  They’ll do business with the fascist thugs who run China, but NOT the state of Indiana.  And, *horrors*, Angie’s List is also jumping on the outrage bandwagon.  Do these people not realize that they are making major business decisions based on the screaming and hollering of just a fraction of 2.3 pesealrcent of the US population? 

This makes me think of the story about Michael Jordan’s explanation on why he doesn’t delve into politics.  Republicans AND Democrats buy tennis shoes, he explained. If you made a business decision that ticked off every gay person in America, and they all boycotted you, the lost business would be a drop in a bucket compared to what you’d lost by thumbing your nose at conservative Christians, or members of the major political parties and being on the end of an ensuing boycott.  MORE: 

Is the Religious Freedom Restoration Act really a license to discriminate against gay people? 

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”

So what is the Religious Freedom Restoration Act, and what does it say? 

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person’s free exercise of religion to be “substantially burdened” by a law only if the law furthers a “compelling governmental interest” in the “least restrictive means of furthering that compelling governmental interest.” 

So the law doesn’t say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven’t. If there’s already a federal RFRA in place, why did Indiana pass its own RFRA?pence

Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections.[…]

North Carolina has state court protections similar to what is in the RFRA.  There has been no action similar to Indiana’s in the General Assembly.

Is there any difference between Indiana’s law and the federal law? 

Nothing significant. Here’s the text of the federal RFRA:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

And here is the text of Indiana’s RFRA:

A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.[…] 

Indiana’s RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.) […] 

So why are so many people saying that Indiana’s law is an unprecedented attack on gay people? 

We shouldn’t hold Ashton Kutcher and Miley Cyrus entirely responsible for their ignorance. Their job, after all, is to make bad music and bad movies, not report the news. Bad journalism is to blame here. See this CNN headline that says the law “allows biz to reject gay customers,” or this New York Times story that makes the same claim while ignoring the fact that many other states and the federal government have the same law on the books.judge

Indiana’s RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn’t commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.

It is true that several local ordinances in Indiana prohibit discrimination on the basis of sexual orientation, but RFRA does not declare that those ordinances are invalid if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply in religious freedom cases.

As Stanford’s Michael McConnell told me last year, RFRA laws haven’t yet collided with public accommodation laws. But what if they do? “For the most part, I think the public accommodation laws are going to win out,” McConnell said. “But I could imagine a circumstance where you have somebody renting out a bedroom in their house, and they have children they’re trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it’s no real interference with their ability to find housing–these cases are just not all one way or the other. They depend powerfully on the particular circumstance.”

That of course is a purely hypothetical case for now. In the real world, the debate concerning gay rights and religious freedom has focused on a handful of cases involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings. You could just as easily imagine a case in which a wedding singer declines to work a same-sex wedding ceremony because of religious objections. But a small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different than the specter of Jim Crow for gay Americans–hotels and restaurants turning away gay people simply because they are gay.