I strongly support gay marriage. Yet I also strongly support Indiana’s recent religious freedom law. Given that many in the media have characterized it as being “anti-gay,” causing state legislators to amend some of its protections away, this might seem like a contradiction. Therefore it’s important to clarify exactly what Indiana’s law says, does, and how it fits in with a vision of a tolerant and pluralistic society.
The Indiana religious freedom law is modeled after the federal Religious Freedom and Restoration Act (RFRA), passed in 1993 by a unanimous vote in the House, a 97-3 vote in the Senate, and signed into law by President Bill Clinton (there are two notable differences between the federal law and Indiana’s law that some critics have pointed out, and I’ll get to those differences in a bit). At the time, right-wing groups like the Christian Coalition joined with left-wing groups like the ACLU in support of the law, and it had remained a bipartisan commitment until recently.
The Historical and Legal Background of Religious Freedom Laws
To understand why RFRA was passed in the first place, we should review its historical and legal background. In 1963 the Supreme Court decided in Sherbert v. Verner that under the First Amendment religious objectors to facially neutral laws have a presumptive constitutional right to exemption. This means religious persons could sue for exemption from a law that compels them to violate their religious beliefs, even if that law did not specifically target their religion.
If a law was passed that required all delis to serve pork, for example, conservative Muslim and Orthodox Jewish deli owners could apply for an exemption given their religious convictions. Although such a law may not be intentionally discriminatory, its effect would be burdensome to the practices of certain religious groups, as it would compel members of those faiths to violate their deeply held religious beliefs.
The Supreme Court determined that a “strict scrutiny” standard would be applied to laws that imposed a “substantial burden” on a person’s religious beliefs. Under this principle, religious objectors would be exempt from laws that burden their religious practices unless the law was the least-restrictive means of serving a compelling government interest.
A “compelling government interest” is typically understood to be an interest that is necessary, one that is an essential government function, not merely one that is preferable policy. It includes issues such as maintaining constitutional protections and preserving the lives, health, security, and rights of persons. To meet the “least restrictive means” standard, the state must show there is not a reasonable and possible alternative means to fulfill the compelling interest. Both before and after RFRA, the Supreme Court has kept religious-freedom exemptions narrow—members of a religion that forbids its members to pay taxes are not exempt from taxation, as the state can both demonstrate that such laws serve a compelling government interest and are the least restrictive means of serving that interest. According to a 2006 study, governments meet these standards in nearly 60 percent of religious-liberty exemption cases.
The Supreme Court Decision that Led to the Federal RFRA
In 1990, the court reversed itself in Employment Division v. Smith. Two members of the Native American Church had been fired for ingesting peyote, which some Native American religious groups use for religious purposes. Because they were fired for violating state drug laws, the former employees were unable to qualify for unemployment compensation. They sued, claiming that the state law prohibiting their use of peyote substantially burdened their religious practices, but in this case the Court determined that the First Amendment did not protect religious groups from facially neutral laws. Legislatures could carve out exemptions when passing laws that might substantially burden certain religious groups if they so chose, but religious persons would no longer have a presumptive right to exemption.
This resulted in a political backlash from all sides, culminating in the passage of RFRA, which reestablished the strict scrutiny standard. In 1997 the Supreme Court determined RFRA could not be applied to state laws—given that it went beyond the scope of Congress’s enforcement powers—but that it still applied to federal laws. Since 1997, 26 states have passed state-level RFRA legislation, with Indiana being the most recent, and another nine have constitutional religious-freedom provisions that state courts have interpreted to require the strict scrutiny standard.
Since its passage, RFRA has disproportionately protected minority religious groups—while Jewish, Muslim, and Native American religions only make up only 3 percent of the population, they make up 18 percent of RFRA cases. And while last year’s Burwell v. Hobby Lobby case grabbed headlines, earlier this year the court determined in Holt v. Hobbes that Arkansas’s policy prohibiting inmates from growing beards violated RFRA, as it substantially burdened a Muslim inmate from practicing his faith.
Three Objections to Indiana’s Religious Freedom Law
There are then three main issues that are raised with Indiana’s RFRA law. The first is the more general question about whether a religious person should have a presumed right to exemption from a facially neutral law if it substantially burdens his or her religious practices. This issue not only applies to Indiana, but to every other state with a strict scrutiny standard, as well as the federal government.
As a pluralistic society, we ought to respect others’ religious beliefs, and do what we can to make space for them to practice their values so long as it does not interfere with basic political requirements. America has a long and proud tradition of making such accommodations—Catholic churches were exempt from prohibition so they could serve wine as a part of the Eucharist, Quakers and other pacifist groups have historically been exempt from being drafted into the military in combat positions, and in the 1990s we further strengthened laws protecting peyote use by Native American religions in their ceremonies.
RFRA protections are particularly important when dealing with religious minorities. More widely represented and politically powerful religions may have the visibility and influence to ensure they are given legislative exemptions from facially neutral laws. But smaller and less influential religious groups, those without as much political clout, will have a harder time protecting their religious liberties and practices. When deciding between following a secular authority or a spiritual one, many people will choose the latter over the former. Giving space within the law to people of different faiths to practice their beliefs does not divide us, but makes us a more cohesive, open, and respectful society.
Many might agree that RFRA protections are important to maintain, but will argue that Indiana’s version went too far by legalizing these kinds of exemptions in private dealings. Unlike the federal version, Indiana’s law states, “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding” (italics mine). This is the second issue: Whether RFRA should allow religious persons to discriminate against private citizens.
Instead, Fight Job Loss for Being Gay
In this case, we should keep two things in mind. First, Indiana, like many states and the federal government, before adding its “fix” to its new RFRA had not listed sexual orientation as a protected status under civil-rights laws. Private businesses are prohibited from discriminating based on race, religion, gender, national origin, disability, etc., but in most states employers can legally fire someone for being gay. Even if Indiana’s religious-freedom law allowed for discrimination, it would be superfluous given that discrimination based on sexual orientation is already legal. That gay, lesbian, and transsexual persons are still subject to this kind of treatment is a national embarrassment, and all the energy many have expended on fighting RFRA would be better directed at expanding non-discrimination legislation to include sexual orientation and gender identity.
The second point is that although Indiana’s law goes further than the federal RFRA law in this respect, it would still not allow for widespread discrimination against homosexuals. If a restaurant banned gays from entering—and if sexual orientation were covered under civil rights protections—then the Supreme Court would easily find that the restaurant violated the Civil Rights Act. Preventing discrimination by private companies is a compelling government interest and there is no less restrictive way of preventing such discrimination than barring private companies from discriminating. Just as a religious objector is still required to pay taxes, given that there’s no way to collect tax revenue without actually taxing persons, so too would private businesses still be required to comply with non-discrimination protections. Religious liberty claims to discriminate have never survived judicial review under the strict scrutiny standard.
The purpose of the additional language is not to allow for widespread discrimination, but to protect the religious liberties of specific professionals who provide services to couples who are getting married—wedding photographers, florists, caterers, etc. This language was inspired by a case in New Mexico (among others), in which a wedding photographer was found in violation of the state’s Human Rights Act for refusing to photograph a same-sex wedding.
But there is an important distinction between a restaurant discriminating against a gay customer and a wedding photographer refusing to participate in a same-sex wedding. In the first case, the restaurant is refusing to serve a person because of their sexual orientation. In the second case, the photographer is refusing to participate in a ceremony that would violate her religious beliefs. As was noted in her petition to the court, the photographer had photographed numerous gay couples in the past, and did not discriminate based on sexual orientation. While the government has an obligation to prevent discrimination, it goes beyond its scope when compelling religious persons to attend ceremonies or other proceedings they find religiously objectionable. So while Indiana’s RFRA would not allow for discrimination of gay customers simply because they are gay, it would have allowed religious objectors to exempt themselves from participating in private ceremonies that violate their religious beliefs. (Its “fix” changed this. Private businesses may no longer exempt themselves from religious ceremonies they find objectionable.)
There are important limits on this kind of religious-freedom protection. It’s an open question whether someone who provides a product or service but does not participate in the wedding itself—like a baker—would be covered under this provision. I find it to be unlikely, and don’t think the protection should extend that far, but it’s an issue for us as a society to debate. Additionally, if the wedding photographer were the only professional photographer in town it would be reasonable for the state to compel her to lend her services to the wedding ceremony, given that the gay couple would otherwise be burdened by not having access to that service at all due to their sexual orientation. But the point I’d like to emphasize here is that this is a complex question between legitimate competing values, and any decision we reach as a society should hopefully take both into account. Toleration is easy when we support or are neutral about the belief or practice in question. It’s far more difficult—but even more necessary—when concerning something we ourselves find objectionable.
Why Individual Rights Extend to Corporations
The third and perhaps most controversial issue surrounding the Indiana religious freedom law is its explicit extension of these protections to corporate entities. Critics argue that corporations cannot have religious beliefs, and that by extending religious protections to corporations Indiana opened the door to legalized discrimination. But the points raised when discussing issue two apply in this case as well: Corporations, like individuals, cannot violate civil-rights protections by appealing to RFRA because non-discrimination requirements meet the two standards needed to override a religious objection. While the federal RFRA does not explicitly protect corporations, in last year’s Burwell v. Hobby Lobby case the Supreme Court decided that the federal law applies to “closely held” corporations, meaning the difference between the two laws on this point is not as much as many have made it out to be.
While treating corporations as if they have religious beliefs might seem strange, we rightly extend a number of individual rights to corporations. The First Amendment’s protections on speech do not only apply to individual journalists, but to the corporation of which they are apart—The New York Times as an institution is protected by the First Amendment as much as its members.
Most churches and religious charities legally take a corporate form, and it would be strange if religious liberty protections applied to members of a church but not to the church itself. When an exemption was made for Catholics under prohibition, the exemption was not extended to specific members of the Catholic Church, but to the Catholic Church as a corporate institution.
We recognize that corporations are forms of association, and persons do not lose their rights—religious or otherwise—when acting as an association, when united in a corporate body. Corporations can also be held legally accountable, just as individuals—a company as a corporate person can be sued for violating some law, or for infringing on the rights of particular individuals or other corporations. Although corporate personhood has been a controversial issue since Citizens United v. FEC, corporations have long been legally treated as persons. There is more that could be said on this point, but debating the merits of corporate personhood would require its own article. However, the basic point is that even though Indiana’s RFRA extends to corporations, it still does not allow for legalized discrimination against gay persons.
Be Generous In Argument
These are hard questions. I don’t want to treat my positions on this matter as final—there are strong arguments on the other side. I may also be mistaken in my analysis, moral reasoning and intuitions, or understanding of the law. But as fellow citizens we should avoid the tendency to paint these issues in the blackest of blacks and whitest of whites. We’re all working through these difficult questions together, and we should do so with compassion and goodwill. We should work to educate each other, and be open to hearing from others with whom we disagree—especially when we don’t understand how anyone could disagree.
Given how homosexual people have been historically treated, both in the United States and elsewhere, it is no wonder that gay-rights groups are especially attuned to any perceived infringement. And with rapidly changing views on gay marriage, the gay rights movement finally feels like it has the wind at its back. But those of us who support gay rights should be careful with our rhetoric and with the battles we choose. Not everyone we disagree with is homophobic, and not every law proposed by opponents of gay marriage will damage the cause of gay rights.
Pushing for gay rights will be easier if religious objectors can be secure in the knowledge that the state will not be used to compel them to violate their religious beliefs. This does not mean gay persons should be discriminated against, but it does mean we should provide the space for people to not participate in religiously objectionable acts. As a tolerant and pluralistic society, it is incumbent upon us to provide this option, even if we strongly disagree with the moral stance of religious objectors.
We should keep one last important thing in mind when engaging in broader debates about gay rights. You don’t change minds by labeling everyone who disagrees with you a bigot. Plenty of the opposition to gay marriage may be rooted in homophobia, but there are a great number of kind and generous people who—due to religious beliefs, cultural norms, or (yes) rational arguments—still maintain the traditional definition of marriage. Criticizing those who disagree with us as morally ignorant is easy, but a healthy public discourse requires that we treat them fairly. The principle of charity demands that we consider the best the other side has to offer and assume they are operating in good faith.
This should apply to all political debates, but particularly to those contentious moral questions—gay marriage, abortion, the death penalty, euthanasia, and all the intersecting issues around race and gender. If we wish to change others’ minds, we have to be open to changing ourselves. Public discourse, like tolerance, is a two-way street.