The Indiana legislature passed the Religious Freedom Restoration Act and the governor signed it last week to give people a remedy against the government for burdening their religious beliefs. A firestorm of controversy erupted, with lawmakers and the governor being accused of discriminating against gays. Thursday, the legislature amended the bill to say it does not authorize discrimination based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or U.S. military service. The Thursday amendment also says Indiana’s RFRA does not establish a defense to a civil action or criminal prosecution for refusal to by a provider to offer or provide services ...” For the record: • I support gay marriage. • I do not condone discrimination based on sexual orientation. • I support religious freedom. I have said in the past I thought this law was unnecessary, largely because courts could always weigh a claim of religious burden against a claim of discrimination – RFRA or no RFRA. Plaintiffs could always raise the case that their religious liberties had been violated under the First Amendment. After RFRA was passed, and amid all the furor, I thought a good solution would be to pass a bill prohibiting discrimination based on sexual orientation. Under that scenario, we would have equally competing compelling governmental interests. For example, if a photographer refuses to shoot photos at a gay wedding and gets sued, the photographer and the gay couple are all protected. The court must decide who bears the legal burden. Is it the religious photographer, who would be forced to attend a gay wedding? Or is it the gay couple who would be forced to find a new photographer? I don’t know the answer to that question, but better minds than mine would have sorted it out. But now, the legislature says the newly enacted RFRA “does not establish a defense” in such cases. So it seems to me, this whole episode simply tosses the whole issue back into the realm of First Amendment protections, as in the case of Wisconsin v. Yoder. Here is a brief synopsis: Three Amish students from three different families stopped attending public school at the end of the eighth grade. Their parents refused to send their children to public schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. They were prosecuted and convicted under a Wisconsin law requiring all children to attend public schools until age 16. Each defendant was fined $5. After appeals, the Wisconsin Supreme Court found in the students’ favor. Wisconsin appealed that ruling to the U.S. Supreme Court. The question was whether Wisconsin's requirement that all parents send their children to school at least until age 16 violated the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons. In a unanimous decision, the U.S. Supreme Court ruled, among other findings, that states cannot force individuals to attend school when it infringes on their First Amendment rights. In this case, the state of Wisconsin interfered with the practice of a legitimate religious belief, the court ruled. (Thanks to oyez.com for that summary.) I suppose the same question could be posed with regard to the photographer. Does Indiana’s requirement that services not be withheld for reasons of sexual orientation violate the First Amendment by criminalizing the conduct of a photographer who refused to attend a gay wedding for religious reasons? Again. I don’t know. But if I had to take a wild guess, I’d say we are probably going to find out. Aside from the substance, I must say that never, in 36 years of journalism, have I seen this level of uncivil discourse based on demonstrably false premises. Never have I seen so many disingenuous and outright hypocritical statements. I watched the media push false narratives. I watched elected officials and corporate titans stumble over each other trying to prove who was the most enraged. (And these are just the official statements reported in the media. What I saw on social media borders on the psychotic.) It’s deeply troubling to me how the media – with a complete disregard for facts and accuracy – rushed to accept the Democrat agenda and condemn this law as “legalizing gay discrimination in Indiana.” Or how the media put the term “religious freedom” in scare quotes or prefaced the term with the pejorative “so-called.” Associated Press, at the outset of this story, called RFRA the “religious freedom” bill. As the controversy unfolded, I noticed the sluglines of stories – which readers don’t see – referring to it at the “religious objections” bill. By Thursday, AP was calling it the religious objections bill in its stories. Apple’s Tim Cook blathers on about not doing in business in Indiana, yet happily ships jobs and products and opens Apple stores in Iran, Qatar, Uganda, Saudi Arabia, et. al., where they execute you for being gay. The Salesforce exec can’t do business here, yet does a ton of business in China, where they torture people and threaten to run them down with tanks. NASCAR comes out with a statement denouncing Indiana and touting its embrace of diversity. Really? Diversity and NASCAR? Now there’s two terms you don’t generally see in the same sentence. NASCAR is the most white-male dominated organization in the history of organizations. And, of course, all these folks do business in literally dozens of other states that have similar RFRA laws. Ah yes, true compassion and tolerance shows through – as long, of course, as it translates well to the bottom line. But let’s be fair. The right bears blame for the controversy as well. Eric Miller and Advance America’s incendiary comments only fueled the firestorm. His group said the bill was needed, in part, because: “Christian bakers, florists and photographers should not be forced by the government to participate in a homosexual wedding. Pastors should not be forced by the government to conduct a homosexual wedding at the church. A Christian business owner should not be forced by the government to permit a male cross-dresser to use the women’s restroom.” Does Miller really think any court in the land would not view his pastor example as an unacceptable and clearcut violation of the Establishment Clause? Seriously? The unyielding truth of the matter is RFRA was never about gay discrimination, no matter what Eric Miller says. This is not only my opinion. It is the opinion of a majority of legal minds who have studied the issue. But misrepresentations appear to be the order of the day with regard to RFRA. It is unbelievable to me how many misguided interpretations of this law have been reported as gospel. I have read time and again how Indiana’s law is much worse than all other RFRAs because of Section 9 and its application in the corporate and/or private sector. This is not true. The Second, Eighth, Ninth, and D.C. federal circuits all have found that the federal RFRA can be asserted as a defense in a private cause of action. In fact, in August 2012, the Eric Holder Justice Department – Barack Obama was president then, by the way – joined those circuits. So when Indiana and other states crafted their RFRAs, they looked at the federal case law and codified those elements into their state versions. It only makes good legislative sense. If federal courts have ruled A, you might as well include A in your state law. It was never some conspiracy to make the law more discriminatory against gays. The misinformation is maddening. Sadly, the way this issue has been exploited by elected officials on both sides and the way reporters have gobbled up and regurgitated falsehoods as fact has shaken my faith in journalism and government. In closing, allow me to quote The Daily Show’s Jon Stewart: “I view America like this: 70 to 80 percent [are] pretty reasonable people that truthfully, if they sat down, even on contentious issues, would get along. And the other 20 percent of the country run it.“
