Religious Freedom Restoration Acts for the well-intentioned, semi-informed layperson
By Bryce Rudow (@brycetrudow)
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It’s been almost a month since Indiana Senate Bill 101 — better known as the Religious Freedom Restoration Act — was signed into law, and it’s been almost 3 weeks since Indiana Governor Mike Pence was forced into signing a ‘clarification’ about the law to ‘clarify’ things that might have looked, well, a little bigoted if taken the wrong way.
So now that the dust has settled and the protests are done being protested, let’s finally take a step back and figure out why so many people were yelling so much.
Indiana’s Religious Freedom Restoration Act (RFRA) is a law that prohibits the government from ‘substantially burdening’ a person’s exercise of religion, unless the government can show it has ‘a compelling interest to do so’.1
Except that fancy bit of legalese means very different things depending on who you ask.
Those who support the law most vocally claim it’s a victory for protecting religious freedoms like the choice to not cater a gay wedding, but a demonstrative amount of people across the country see it instead as a tool for discrimination aimed squarely at the LGBT community. Now usually when you’re picking between religious zealots and gay-rights activists the correct answer is pretty clear, but this is actually one of those fun times where neither camp got it right…
The religious zealots who supported even the pre-‘clarified’ version of the RFRA had no idea they were supporting a law that was actually established to protect the rights of religious minorities in this country (aka not them), the LGBT activists that were seconds away from lighting torches on Governor Pence’s lawn were blissfully unaware of the law’s contextual toothlessness, and anyone who tried to put things into some sort of perspective was completely drowned out in the wash.
The Indiana RFRA effectively became a debate topic that even the people involved in the debate didn’t really understand.
So let’s try and understand it!
A BRIEF HISTORY OF RFRA’S:
In 1990, the Supreme Court ruled against two men who were denied unemployment benefits after taking peyote as part of a worship ceremony of the Native American Church. Fortunately, both Democrats and Republicans didn’t like the way that harshed the Native Americans’ religious mellow, so the first federal RFRA was passed shortly thereafter.
However, in 1997, the Supreme Court ruled that the federal RFRA law only applies religious protections in the context of other federal laws. That meant it was up to each individual state to pass its own measures when it came to legal protections for religious rights, leading us to our current situation of an array of different religious protection laws (and lack thereof) all across the country.
WHERE THE CONFUSION COMES IN:
RFRAs, despite what even some supporters of the law will tell you, have nothing to do with giving religious people the ability to discriminate against non-religious people, or anyone for that matter. In fact, RFRAs are actually meant to protect religious people from discrimination themselves.
To show you what I mean, here’s a good sampling of some cases in which a state RFRA has been used successfully (courtesy of the Greensburg Daily News):
- In 2012, Chosen 300 Ministries, a religious organization in Philadelphia, used RFRA to sue the city of Philadelphia, which had adopted an ordinance that barred the distribution of free food in public parks (i.e. feeding the homeless). Chosen 300 argued that the ordinance placed an undue burden on its exercise of religion by preventing it from, ya know, helping others not starve.
- In 2010 in Texas, Michelle Betenbaugh and Kenney Arocha, members of the Lipan Apache Tribe of Texas and parents of a kindergartner, sued the Needville Independent School District because its grooming policy required that their boy “wear his long hair in a bun on top of his head or in a braid tucked into his shirt” — not, as the boy’s Apache religion required, long and either unbraided or in two braids.
- In 2011, the State Appeals Court ruled in favor of Mary D. Stinemetz, a Jehova’s Witness who needed a liver transplant but whose religion prohibited her from getting a blood transfusion. She requested a bloodless transplant from the health policy authority and was originally denied.
Giving food away to the homeless, wearing long hair in two braids instead of one, bloodless transplants; this is what RFRA cases look like. Not the serial of homophobic atrocities you were expecting, huh?
The truth is nobody in 22 years has ever won a religious exemption from a discrimination law under a RFRA standard, and those types of cases rarely even come up.
It’s unclear which came first, the homophobic bigot who mistakenly used RFRAs to rally his conservative base or the gung-ho activist who decided this law was the only thing standing between equal rights for everyone regardless of sexual orientation or gender identity, but it’s obvious the rhetoric of this ‘debate’ overtook the facts long before this was a national news story. RFRAs getting passed don’t mean Christian wedding florists are saved from interacting with heathens, just like not passing an RFRA doesn’t prevent an asshole landlord from evicting their nice lesbian tenant just for being a lesbian. These aren’t really RFRA issues at all.
What these people are really arguing about, whether they’re using the right verbiage or not, is anti-discrimination law…
LGBT ANTI-DISCRIMINATION LAWS:
So remember that part in the Indiana RFRA ‘prohibiting the government from substantially burdening a person’s exercise of religion unless the government can show it has a compelling interest to do so’? Well, anti-discrimination laws are that compelling interest we’re looking for. Many states with an RFRA — even Texas! — have also passed statewide bans on discrimination based on sexual orientation alongside other protected classes like race, sex, and, religion, for just such a discriminatory occasion.
By the way, remember that ‘clarification’ we were talking about earlier that was added to the original Indiana RFRA by Governor Pence a week after the original law was signed? It was covering their ass on this very issue, and prevents individuals and businesses from using the law to refuse employment, housing, or service to people based on sexual orientation or gender identity.
However, in states that don’t have anti-discrimination laws, it’s still very much legal for an employer to fire someone or a landlord to evict someone just because they are gay. And that would be a lot of them:
A Summary Of That Summary:
Indiana’s Religious Freedom Restoration Act is a law that prohibits the government from ‘substantially burdening’ a person’s ‘exercise of religion’, unless the government can show it has ‘a compelling interest to do so’.
However, thanks to a polarized political climate and our society’s love of getting into rhetorical debates without all the facts, the real issues around both the law and LGBT discrimination are getting tragically lost in the cacophony.
In other words…
“Part of the problem is conservative legislators and activists promising the base that a state RFRA will protect them against gay-rights laws. That’s just pandering; there is no basis in experience to think that. But the gay-rights side has piled on with the charge that these laws are licenses to discriminate. So both sides are misleading the public. And the academics who have actually studied these laws and know what they do can’t get anyone to pay attention over the din.”
– Douglas Laycock, professor at the University of Virginia Law School
In One Tweet Or Less:
A Reasonable Opinion To Have:
Thanks to an overzealous 24-hour news cycle and the impulsive instincts of social media, this fairly innocuous bill got manipulated and marketed as some sort of political game changer. There’s a good chance no one’s hands are completely clean now that all is said and done, but the truth is that Indiana’s RFRA became a straw man argument for both liberals and conservatives.
Really, the issue we should be talking about is making sure there are LGBT-friendy anti-discrimination laws in place in every state (especially since Obreezy took care of it at the federal level). That’s what people on both sides seem to really care about, one way or the other, anyway.
A More In-Depth Article That’s Still Easy To Understand:
The Atlantic’s: “Public Accommodations and Private Discrimination”