This law, known as a Religious Freedom Restoration Act or RFRA (pronounced “riff-ra”), tracks the language of the 1993 federal RFRA signed into law by President Clinton after a 97-3 vote in the Senate. But you would not necessarily know how innocuous it is from news media coverage.
According to what you might hear in the news, this is an anti-gay law that is “almost universally loathed,” and which a White House official suggested would “legitimize discrimination.”
Here are the facts:
#1 What Is a RFRA?
This legislation sets the same minimum standard for burdening the exercise of religion. Under the various RFRAs, a state or the federal government—by law or other action—may not substantially burden an individual’s exercise of religion unless the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. Twenty states, including Indiana, and the federal government have RFRAs
#2 Is It a law to discriminate against homosexual/transgender/lesbian citizens?
No. The words “gay,” “lesbian,” and “sexual orientation” don’t appear in any of the RFRAs. Until now, the most controversial RFRA case was last year’s Hobby Lobby v. Burwell, which was about whether the federal government has a compelling interest in forcing religious business owners to pay for abortifacents. (It doesn’t.)
This big gay freak-out is purely notional. No RFRA has ever been used successfully to defend anti-gay discrimination, not in twenty years of RFRAs nationwide.
#3 Why Is Everyone So Mad about Indiana’s RFRA, Then?
The fear is that it could be used to deny service to gay people in places of public accommodation like businesses and restaurants. But, as discussed above, no RFRA has ever been used that way before. Also, Indiana does not have a public accommodation law that protects against anti-gay discrimination, meaning there’s no state law in Indiana preventing anti-gay discrimination in businesses even before the state RFRA was enacted. Notably, despite the lack of such a law, nobody can point to any Indiana businesses that were discriminating against gays.
That’s what makes this an informed attribute. Gay marriage is on many people’s minds lately, for obvious reasons. In truth, though, Indiana is merely catching-up to states that have had RFRAs for decades—like Illinois, for example, which got its RFRA with the help of a young state senator named Barack Obama. Unfortunately, Indiana is now caught in the cultural cross-fire.
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