It took less than a week for a handful of elites, including celebrities, reporters, and CEOs, to transform 6.5 million Hoosiers from fellow citizens into an enemy of the people. Any group of people yielding that level of influence ought to frighten every American.
In Federalist 10, James Madison suggested that America’s large size and population would make it difficult for any faction to advance its interest at the expense of the general good. Sadly, the events of the last week have called this conclusion into question. Millions of Americans demonstrated they will forgo serious reflection and adopt the opinions of a handful of elites as their own. Unfortunately, these elites mislead the American people to advance their own interests at the expense of the general good.
Two weeks ago, the American people did not hate Hoosiers. Why would they? More than six million people live in Indiana, and the notion that the entire state deserved shunning would have shocked most Americans. That was two weeks ago. Today, the state is the subject of intese hatred and derision over social media. Governors, sporting associations, celebrities, and corporations are boycotting the entire state in an attemt to make it suffer so badly that it will bend to their will.
The only thing that changed in that time period was that Indiana passed a Religious Freedom Restoration Act. This law exists in around 30 states when one combines states with the statute and states that interpret their constitution to provide the same protection. How could passing such a widely adopted law lead to such hatred?
We’re Being Spooked Into a Stampede
A small faction of elites took advantage of RFRA’s passage to turn American against American in furtherance of their own goals. These elites described RFRA as providing a “very dangerous” “license to discriminate” and compared the law to Jim Crow and even claimed it was a precursor to Kristalnacht. Madison predicted that such remarkable and easily disprovable claims would be “checked by distrust.” Unfortunately, millions of Americans chose to blindly trust the faction making these false and self-serving claims.
Numerous prominent law professors called for calm, explaining that RFRA does not provide a license to discriminate. The law simply creates a balancing test under which the government must meet certain requirements before burdening a person’s religious liberty. They explained that, despite very widespread and long-term adopton, no court had ever found that these laws protect a right to discriminate.
The elites responded to these criticisms by manufacturing two “differences” that allegedly explained why Indiana’s law was uniquely diabolical. First, they claimed that Indiana’s law was the only one that protected corporations as well as individuals. Second, they claimed that Indiana’s law was the only one that could function as a defense in a lawsuit that did not involve the federal government. Both of these claims are demonstrably false and a thoughtful citizenry would have quickly rejected them.
States started to pass RFRAs after the Supreme Court determined that the federal RFRA could not apply to state laws. Most states adopted language nearly identical to the federal RFRA in order to restore the federal protections at the state level. Therefore, the text and meaning of the federal RFRA will also apply to most of the state laws.
Indiana’s Law Is Almost Identical to the Federal Version
The federal RFRA clearly protects corporations as well as individuals. RFRA states that its protections apply to “a person’s exercise of religion.” The Dictionary Act states that, in general, when “determining the meaning of any Act of Congress” the word “person” shall include “corporations, companies, associations, firms . . . as well as individuals.”
The Supreme Court endorsed this plain reading of the text in its Hobby Lobby decision. That portion of the decision was 5-2, meaning Justices Kagan and Breyer dissented from the rest of the decision but refused to endorse the claim that RFRA did not protect corporations.
The court had already previously unanimously applied the federal RFRA to non-profit corporations. In an earlier case, the Court analyzed whether a law violated a for-profit kosher butcher’s First Amendment right to the free exercise of religion. The court concluded that the the law had not violated butcher’s rights based on the specific facts of the case, not because the butcher lacked constitutional rights. Two iconic liberal justices, William Brennan and William Douglas, would have held that the butcher’s First-Amendment rights had actually been violated. In 2015, the argument that the federal, and most state, RFRAs do not protect corporations cannot be taken seriously.
The notion that Indiana’s RFRA is the only one that can be used as a defense in a case between private parties is similarly absurd. The federal RFRA can be used as a defense in such cases arising in numerous states, including Arkansas, Minnesota, California, New Jersey, and New York. Texas’s RFRA explicitly allows parties to use the law in that situation. More than half of the U.S. population lives in a state where RFRA can be used as a defense in a private lawsuit.
Admittedly, the federal RFRA is somewhat vague regarding whether it can be used in lawsuits between private parties. However, more appellate courts have thus far found the expansive regarding more compelling, and this seems to be the more accurate reading of the law. But it is not uniform, and that’s exactly why Indiana sought to make this point explicit in their statute. Indiana wanted to make it clear that they were siding with federal courts in states like California and New York. That is hardly the same as being some sort of extreme outlier.
This Isn’t About Gays At All
More fundamentally, even if the critics were right (and they aren’t), why do they find it so troublesome that RFRA might function as a defense in a case between private parties? Critics claim this would uniquely position businesses to prevail in anti-discrimination lawsuits brought by gays and lesbians. Their claim is misleading, at best.
RFRAs are almost never used to challenge anti-discrimination laws. That is equally true in states where RFRA can be used as a defense against a private party and ones where it cannot. Even in states where RFRA cannot be used as a defense against a private party, there are situations in which a business could use RFRA to challenge an anti-discrimination law—for example, as a defense against a lawsuit brought by a government agency like the Equal Employment Opportunity Commission.
If a business attempted to use a RFRA in order to justify discrimination on the basis of sexual orientation, in either type of jurisdiction, the same compelling interest test would apply. The business would not have a “license to discriminate” in either state. In fact, the business would likely lose in both states for the exact same reasons. Given those facts, it is unclear exactly why the critics think this situation, even if true, would be so uniquely bad as to justify their outrage.
Republican government isn’t America’s birthright. It has to be earned and protected. If citizens keep relying on the likes of Miley Cyrus, Tim Cook, and Al Sharpton to do their thinking for them, it may not be protected for very long.
