Someone ask the flamethrowers if they’ve read the law. It’s nothing new.
So much has erupted in big media and social media since Indiana Governor Mike Pence signed the Religious Freedom Restoration Act into law the other day, sanity is another thing we need to restore.
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. They say the law is a license to discriminate against gay people
which is simply not true. However, they’re making that perception a reality in people’s minds by repeating that exact mantra often and everywhere they can.
So calmer, wiser voices are speaking up to clarify just what this is all about. There are primers on RFRA all over the place, for those interested in knowing the truth behind the blowup. Here’s the Weekly Standard.
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.”
It’s actually the opposite. It’s a protection of individuals, business owners, others, from being discriminated against for conducting their business according to their beliefs. Which applies in any number of possible scenarios, some offensive to one group or another, but necessary as a uniform framework law.
So what is the Religious Freedom Restoration Act, and what does it say?
(this is important, pay attention:)
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 (D-NY), 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.” (emphasis added)
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.
However, the Weekly Standard notes the dramatic overreaction to the perception of the law since it passed late last week.
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.
Mollie Hemingway takes a closer look at that SalesForce boycott, among others, in this piece at the Federalist.
SalesForce is a $4 billion cloud computing company based in San Francisco. And its CEO Marc Benioff opposes religious liberty protections. He’s so extreme about it that when Indiana passed a bill that protects religious liberty, he announced he was pulling business out of the state….
Benioff argues that protecting religious liberty makes travel to Indiana unsafe for customers or employees. This would be a foolish slander about any state that protects religious liberty. But have you been to Indiana? They’re almost too nice. This is a shockingly stupid claim for someone to make about liberty protections. Besides, this bill protects people from improper government restrictions on religious liberty, contrary to most media coverage of the bill.
Anyway, it’s worth looking at who Benioff happily does business with.
The company has a branch based out of Beijing in the People’s Republic of China, a Communist-controlled country that is a human rights nightmare.
There’s a nicely revealing snip there from the US Commission on International Religious Freedom report on China detailing some of that country’s latest abuses.
Then Hemingway makes a point of what the RFRA is, both the federal and state versions. And applies critical thinking to this exercise in knee-jerk reaction.
The United States has since 1993 had a federal version of the bill signed by Gov. Mike Pence yesterday. And Indiana joins 18 states with versions of Religious Freedom Restoration Acts.
If SalesForce CEO Benioff is going to be consistent, he’s not only going to have to lay off everyone who works out of his Chicago, Indianapolis, Tampa and Northern Virginia offices, but he can’t even do business in Alabama, Connecticut, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Texas.
And there are more to consider. Check out the specifics in the thorough piece.
Also, Benioff may want to review his many contributions to candidates. He’s given a ton of money to candidates who voted for state or federal Religious Freedom Restoration Act legislation, including Rep. Nancy Pelosi, President Barack Obama, and Speaker of the House John Boehner.
Here’s a helpful primer the Gospel Coalition’s Joe Carter put together. At bottom,
Many media outlets identified the Indiana bill as being “anti-gay.” Unfortunately, rather than being outraged at finding they were lied to by politicians and journalists, most Americans will not bother to learn the truth and will remain ignorant about these important laws that protect our “first freedom.”
And for those who want to perpetuate the distortion that this latest extension of a longstanding, bipartisan protection of religious freedom is ‘anti-gay’, here’s what law professor Daniel Conkle wants to share, which he did in USA Today.
I am a supporter of gay rights, including same-sex marriage. But as an informed legal scholar, I also support the proposed Indiana Religious Freedom Restoration Act (RFRA). How can this be?
It’s because — despite all the rhetoric — the bill has little to do with same-sex marriage and everything to do with religious freedom.
The bill would establish a general legal standard, the “compelling interest” test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion. This same test already governs federal law under the federal RFRA, which was signed into law by President Bill Clinton. And some 30 states have adopted the same standard, either under state-law RFRAs or as a matter of state constitutional law.
Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.
The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a “license to discriminate,” and it should not be mischaracterized or dismissed on that basis.
There’s plenty more to say, and since this story is exponentially growing bigger and hotter, ballooning with the help of media and social media campaigns fueled more by visceral reaction and emotion than information and consideration, there will be more opportunities, with all this attention, to focus on the truth of the matter.
Meanwhile, here’s the text of the Indiana law.