Your Questions On Indiana’s Religious Freedom Bill, Answered
Gabriel Malor

This past week, journalistic abuse has exploded into controversy over an innocuous religious freedom law in Indiana. 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.”

Indiana’s RFRA has none of these characteristics.

There is in works of fiction a concept called the informed attribute. An informed attribute is an abuse of storytelling that occurs when the author gets lazy and, instead of demonstrating that a character has a certain characteristic, simply informs the audience that they do. So, for example, think of the way Daniel Defoe characterized Friday in “Robinson Crusoe”: savage, cannibal—except that Friday never does anything savage or cannibal throughout the novel. Indeed, “my man Friday” is now a euphemism for an incorruptible subordinate. Or, to use a more recent example, consider that in the Twilight novels, we are told that Bella is a loner who is older than her years—except she is always surrounded by friends whom she can’t seem to get enough of, and she has a teenager-like obsession with a certain boyish vampire who she wants to bone. These are informed attributes. The indispensable TV Tropes explains the informed attribute arises through a “violation of Show, Don’t Tell when fleshing out a fictional tangible.”

Lately, there has been a depressing tendency for the informed attribute to migrate from fiction to journalism. It has popped up when journalists cover President Obama—so heroic!, despite the fact he has never done anything particularly heroic. It is inescapable in news media coverage of the Tea Party—racists! villains!, even though the Tea Party is neither. Even Gov. Chris Christie has taken licks for it—gauche nouveau riche!. Despite there being no evidence for these attributes, journalists will simply repeat them as if they were true and hope that incurious, unsuspecting readers assume it.

Fortunately for the news consumer, if not consumers of fiction, an informed attribute in journalism can be overcome with the application of a little knowledge. Here is everything you need to know to push back against the laziness or maliciousness in the news about RFRAs.

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.

What? Government Interest?

Yeah. It’s a lot more nuanced than the news media has allowed. It’s a balancing test for litigation. It puts exercise of religion on one side of the scale and then government interest on the other. If the government’s interest is not important enough—literally compelling—it cannot outweigh an individual’s right to practice his religion as he sees fit.

So RFRAs Don’t License Discrimination?

No. RFRA is a shield, not a sword. It can be used to defend oneself against lawsuits or administrative action. It can’t be used affirmatively to try and deprive others of the protections of law.

So How Does This Really Work?

For example, back in 2006 the Supreme Court considered a case (PDF) involving a psychotropic tea that believers of a New Mexico church imbibed as part of their religious ceremonies. Customs inspectors had seized the tea as a violation of the federal Controlled Substances Act. The high court applied the balancing test described above. First, no one disputed that depriving the believers of their tea would be a substantial burden on their exercise of religion. That’s the religion side of the scale. Second, the federal government in claimed it was just applying the Controlled Substances Act to everyone equally. But that is precisely why the government lost at the Supreme Court—unanimously. The government could not explain why it could not give an exemption to this little group of believers that wasn’t harming anyone with its tea. And so the government’s interest in uniform application of the Controlled Substance Act was outweighed by the interests of the believers in practicing their religion in peace.

If There’s a Federal RFRA, Why Do States Have to Have Them, Too?

That’s a different Supreme Court case. In 1997, the high court held that the federal government lacked the authority to impose RFRA on the states (hurray, government of limited power!). If the states want to have RFRAs, they have to adopt them on their own. Since then, 20 states have enacted RFRAs.

Is Indiana’s RFRA Like the Other RFRAS?

Yes and no. Indiana’s RFRA applies the same standard as in the other RFRAs that is described above: substantial burden versus compelling interest and least restrictive means. Indiana’s RFRA is a defense not just for individuals, but also companies and corporations. This is similar to the federal RFRA after Hobby Lobby, which also applies to individuals, companies, and closely-held corporations. But not all state RFRAs include companies and corporations. So that’s different in some states.

Indiana’s RFRA also protects individuals both in lawsuits or administrative actions brought by the government and in lawsuits brought by private parties. Some states, like New Mexico, do not allow RFRA to be used as a defense in litigation where the government isn’t a party. Also, the federal circuit courts are split about whether the federal RFRA can be used to defend against private lawsuits where the government isn’t a party. So that’s also different in some states and in some federal circuits.

Otherwise, it’s the same law.

You Didn’t Say Anything about the Gay Stuff.

That’s because 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.

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.

Do Religious Freedom Protections Hurt Gays?

It is entirely consistent to favor broad religious freedom protections and also favor gay rights. Many gays are religious, and so themselves benefit from religious freedom protections like RFRA. But even where gay Americans and religious Americans find themselves in conflict, there is ample room in communities to peaceably coexist. That’s the point of a RFRA. No side gets an automatic-victory card. The interests of all sides gets weighed.

What Do We Do Now?

If you’ve made it this far, you know more about RFRAs and the Indiana situation than the average news consumer. Share your knowledge. It’s the only way to beat the swarms of aggrieved news consumers who don’t know any better than what they’ve seen in the papers.

The only way to push back against the informed attribute in this instance is to point to the actual attributes of the law. Before Indiana, RFRAs existed for over 20 years in 19 states and the federal government. There has been no parade of horribles. They are a shield, not a sword. And their object is religious freedom, not anti-gay discrimination.

Gabriel Malor is an attorney and writer in Washington, D.C. Follow him on Twitter.
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