Governor Mike Pence signed Indiana’s version of the Religious Freedom Restoration Act (RFRA) into law on Thursday, March 26th. The RFRA gives businesses and citizens the right to object to conduct that compromises their religious beliefs. The law is based on the federal act of the same name, which was adopted in 1993. In the 1997 case of City of Boerne v. Flores, however, the Supreme Court ruled the RFRA exceeded federal power when applied to state laws. A state-level version of the law subsequently passed in 20 states after the 1997 decision. Despite other states having similar laws in place for many years, Indiana is already facing a tidal surge of backlash, including condemnation from notable fixtures like the NCAA, Tim Cook of Apple, Salesforce.com, Yelp, and Hilary Clinton.
Although not mentioning homosexuality outright, the controversial provisions of the Indiana law could give business owners the right to refuse services to LGBT patrons based on religious differences. One prominent lobbyist for the bill, Eric Miller, claimed that the measure was aimed at among other things, protecting members of the clergy from being forced to perform gay marriages, or protect Christian businesses that refuse to let men use the women’s bathroom as examples. Conservative groups claim the law to be a countermeasure to the state and national trends to legalize gay marriage.
This isn’t the first time public sentiment has shifted from freedom of religious expression to freedom from discrimination. It is part of a larger political science debate that has gone on in college campuses and scholarly journals for over a century, the argument between positive rights and negative rights. The 1993 Act was passed nearly unanimously in a move away from state-level discretion in order to standardize the freedom of religious expression. This occurred, however, in a political climate prior to both the rise in public sentiment in support of gay marriage and before the conservative resurgence of the GOP in the late 1990’s.
Despite the passage in Indiana, the RFRA appears to hardly be settled law. It will be curious to see what kind of pressure the widespread reaction will have on its long-term sustainability. Voter backlash may end up knocking some elected supporters of the law out of office. Officials in RFRA states may begin repealing the laws voluntarily to save face, or public sentiment could turn back in favor of the RFRA in backlash against overzealous protestation. Much like the way higher courts have continued to rule that voter-approved gay marriage bans to be unconstitutional, these courts may begin to look at provisions in the RFRA in the same light. Any or all of these actions will certainly bring about a new wave of debate over separation of powers and the ever-swinging pendulum between freedom and protection.
New York Times – Michael Barbaro and Erik Eckholm
The Blaze – Billy Hallowell
The Gospel Coalition – Joe Carter