On Thursday, Indiana governor Mike Pence signed the Religious Freedom Restoration Act (RFRA) into law, and some celebrities, politicians, and journalists–including Miley Cyrus, Ashton Kutcher, and Hillary Clinton, just to name a few–are absolutely outraged. They say the law is a license to discriminate against gay people.
Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded travel to the state.
Is the Religious Freedom Restoration Act really a license to discriminate against gay people?
No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”
So what is the Religious Freedom Restoration Act, and what does it say?
The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote.
The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person’s free exercise of religion to be “substantially burdened” by a law only if the law furthers a “compelling governmental interest” in the “least restrictive means of furthering that compelling governmental interest.”
So the law doesn’t say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven’t.If there’s already a federal RFRA in place, why did Indiana pass its own RFRA?
Great question. In a 1997 Supreme Court case (City of Boerne v. Flores), the court held that federal RFRA was generally inapplicable against state and local laws. Since then, a number of states have enacted their own RFRA statutes: Indiana became the twentieth to do so. Other states have state court rulings that provide RFRA-like protections. Here’s a helpful map from 2014 that shows you which states have RFRA protections (note that Mississippi and Indiana have passed RFRA since this map was made).
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