Diary

Much Ado About Nothing?

I support the  Indiana RFRA without clarifications or modifications.  I also support public discussions based on the actual facts.   After digging into to the details of the Indiana RFRA controversy over the past couple of days, it is clear to me that  99.9% of the arguments on the Indiana RFRA have nothing to do with the actual statute. Douglas Laycock, a professor at the University of Virginia Law School who supports both the Indiana RFRA and legalized same sex marriage posits a conclusion worth thinking about:

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.

No defendant has ever successfully used the RFRA to defend a discrimination.   The RFRA is not a white knight for Christian bakers and photographers.

There are hardly any cases about discrimination, and nobody has ever won a religious exemption from a discrimination law under a RFRA standard. (Churches are exempt when sued by their ministers, but that is a separate constitutional rule. Some discrimination laws have specific exemptions for churches or religious organizations. That is very different from trying to persuade a court that anti-discrimination laws do not serve compelling government interests.)

It is also worth pointing out that a state RFRA such as the Indiana RFRA can’t help a defendant in a discrimination case raised under Federal law.

One other wrinkle: a state RFRA cannot protect anyone against federal law. If the Supreme Court requires states to recognize same-sex marriage, no state RFRA will create exemptions from that. The issues about exemptions from gay-rights laws arise only when a state with a RFRA also has a sexual-orientation nondiscrimination law. Most of the red states that are enacting RFRAs have no such laws, but some of their cities do. Indianapolis, Bloomington, and South Bend prohibit sexual orientation discrimination. In the rest of Indiana, this whole issue remains hypothetical. And although it’s not illegal to discriminate against gays in Indiana, the Indiana reporters I have talked to are not aware of any widespread practice of it.

The bottom line is that the Indiana RFRA is a good thing, but it is a relatively small thing and it doesn’t and can’t do what 99.9% of the public debate is about.  (As a side note, this reminds me of the public discourse on “comprehensive immigration reform” which focuses exclusively on amnesty despite the purported “comprehensive” nature of the policy changes).

Symbolism can be important, and no doubt the symbolism on this issue is important.  Moreover, there are good reasons to support the RFRA that have nothing to do with the “gay agenda”.  It is however worth noting that when the right defends the Indiana RFRA using the argument that it is substantially similar to other RFRAs (both Federal and state), that there is no reason to conclude that the Indiana RFRA is more likely to protect a baker/photographer than the other RFRAs that are substantially similar to the Indiana RFRA.  The differences are either relatively minor (in which case the outcomes will be relatively consistent), or the differences are material (in which case the comparisons between the RFRAs are misleading).

All debate is a mixture of heat and light.  Our public discourse on the Indiana RFRA is 99.9% heat and 0.1% light.  That is just as much a cause of concern as the importance of freedom.  How the public debates freedom has a lot to do with the nature of the freedom and liberty that we end up with.

There is no reason to “clarify” or repeal the Indiana RFRA.  There is also no reason to suspect that the Indiana RFRA will allow an Indiana baker or photographer to withhold their services from a same-sex wedding.

The Indiana RFRA is being used by both sides of the argument as a public awareness/fundraising opportunity.  However, the Indiana RFRA will not accomplish what the right wants it to accomplish or the left fears it will accomplish.  Much ado about nothing? Or a pretext for a broader debate?  In any case, the public is better served if the contours of that debate are not defined by hyperbole without a factual basis.

Have the American people lost the ability to discuss these issues without unseemly histrionics and hyperbole?  If so, what does that mean to the idea of self-government?

UPDATE: A piece by Andrew McCarthy has been added to the link.

List of links worth reading:

Indiana RFRA

Article comparing Indian RFRA with Federal RFRA

Law review note on whether the Federal RFRA provides a defense between private parties

Article by Douglas Laycock (link for all block quotes)

Andrew McCarthy on why RFRAs are bad ideas