Diary

Thoughts on the Indiana RFRA

flag_of_indianaWho needs comedy when you have the Left?  Want to see them go absolutely apoplectic?  Pass a Religious Freedom Restoration Act that mirrors a law that has been on the Federal books for over two decades, that was co-sponsored by a Democrat (Schumer) and signed into law by a Democratic President (Clinton), and that exists in twenty other states- red, blue and every other color of the gay rights rainbow flag.

So, let’s start at the beginning.  The Federal law was passed in response to a Supreme Court decision in order to restore the balance of power back in favor of religious liberty.  That case involved someone who was fired because of their use of peyote during a Native American religious ritual.  The government can still “burden” religious liberty if it (1) furthers a compelling state interest and it (2) uses the least restrictive means necessary.  For example, no sane government would allow the ritual sacrifice of humans since bans on murder further a very compelling state interest despite the alleged religiosity of the ritual.  When Indiana passed this law, 19 other states had passed similar laws because another Supreme Court decision decided the federal RFRA did not apply to states.

How do these laws actually act in other states?  In other words, what are the real-world applications, not the fear-mongering hypothetical examples being trotted out by the law’s opponents?  In Minnesota, which has an RFRA, the government passed a law that Amish buggies have flourescent lights.  There was a compelling state interest- public safety.  But, it was not the least restrictive means of achieving that interest which is why Amish buggies in Minnesota now have reflective tape and lanterns.  At the federal level, the Supreme Court just recently decided that a Muslim prisoner could not be forced to shave his beard since it posed no security risk, although the length of the beard could be restricted.  If anything, the law has protected minority religions and their practices.

But its opponents claim that the Indiana law differs from those in other states because it extends the religious liberty protections to businesses and corporations.  In effect, the Indiana law is not unlike those in other states EXCEPT that it is updated in light of the Supreme Court’s Hobby Lobby decision.  In that case, the Court took special care to note that the decision was narrowly tailored and applied to closely-held corporations, as does the Indiana law.  In effect, the Indiana law mirrors the federal law based upon even more recent Supreme Court jurisprudence.

At its core, this has absolutely nothing to do with gay rights at all.  The LGBT community, through their mouthpiece the Human Rights Campaign believes they have captured the “Aha! Gotcha” picture of Governor Pence surrounded by people at the bill’s signing.  Although they are not all priests, ministers, rabbis, imams, or Wicca High Priestesses, there are three representatives of family values organizations.  And?  Are they not to be in favor of religious liberty?  These highly-circulated pictures being offered as proof that the state of Indiana has some nefarious anti-gay animus in passing this bill holds about as much logical weight as a Miley Cyrus tweet about the subject.

Its opponents note that the law differs from other states because these states also have statewide laws protecting against discrimination based on sexual orientation.  Illinois and Connecticut are two examples.  Yet, no one in the LGBT community in Indiana or elsewhere can point to a single instance of any gay being discriminated against for anything in Indiana prior to passage of this law.  If discrimination did not act prior to its passage, it is unlikely to occur after its passage.  That is because the law is a shield, not a sword to be used as justification for discrimination.  As a shield, it directs courts in Indiana not to give out “You Automatically Win” cards to either side in any litigation.  The compelling interest of the state must be weighed against the religious belief/practice and if the interest prevails, it directs the government to use the least restrictive means to achieve that interest.

Which then brings me to the “flowers and cakes” crowd.  These are the people who trot out examples from Washington or New Mexico about privately-held businesses refusing to serve gay couples.  In fact, these cases are the outlying examples and statewide anti-discrimination laws generally apply.  For example, a florist in Washington was recently fined $1,000 for refusing a gay couple’s request for flowers for their wedding.  If the battle for gay rights has descended to the level of flowers and cakes then their priorities are seriously misguided.

Most of the opposition statements are ludicrous and silly.  Such legal luminaries as Ashton Kutcher, Miley Cyrus and Al Sharpton have weighed in with their usual insightful analysis.  Angie’s List has cancelled an expansion of their Indianapolis headquarters costing over 1,000 potential jobs.  I am sure the gay unemployed person in Indianapolis is grateful for this business decision.  The Mayor of Seattle has placed a travel ban for official business to Indiana, although one has to question how many times officials from Seattle travel to Indiana on official business.  But, I am sure the Mayor and fine folks of Seattle feel good in their enlightened smugness.  Incidentally, Washington requires heightened RFRA-like protections also through court edict, not legislation.

Now that Schumer has weighed in (he was the Democratic co-sponsor of the federal law), one can be sure that Herr Obama will soon weigh in also.  But one should remember that Obama, while a state senator, voted for the RFRA in Illinois.  In fact, it is one roll call vote where he did not say “present.”  If it was good for Illinois in 1998 and good for Schumer and the federal government in 1993, why is it now bad for Indiana in 2015?

There was an article I read in another outlet (I forget where) that summarized this whole “controversy” best.  It stated that the whole debate is taking a page from the French Revolution where liberty could not peacefully coexist with religion.  There, religion was repressed and came out the loser.  It appears that the LGBT community and their supporters, through either ignorance or stupidity, has adopted the tactics of the guillotine.  Unfortunately, in knee-jerk, lockstep fashion organizations like the NCAA, Apple, Angie’s List and others are willing accomplices in this beheading of religious liberty.