Free Religion is not Free Discrimination

March 31, 2015

When Indiana Governor Mike Pence signed Indiana’s version of the Religious Freedom Restoration Act (RFRA) into law on March 26, it kicked up a firestorm of controversy and is already seeing a wave of backlash, such as the City of San Francisco banning any work-related travel to the state, Salesforce Inc. publicly cancelling any programs that require people to enter Indiana, and a variety of other public criticisms sounding the same general concern that this bill is creating a “license to discriminate” or that it is blatantly “anti-gay.” This backlash seems set to continue further with the potential passage of a similar bill in Arkansas.

But is the rhetoric regarding the Indiana law and the Arkansas bill justified? To assess this question, we should look at context this legislation originally arose from, how similar laws have been applied in other jurisdictions, and whether these iterations of the law are different from other versions in a way that raises special concerns.  Doing this, it will become clear that, on the whole, while there are other laws1 out there directly keyed to the LGBT issues, characterizing these pieces of legislation as authorizing discrimination is unjustified.

Where did RFRA come from?

One fact that might support claims that either Indiana’s law or Arkansas’ bill is anti-gay would be if the language of these legislative acts was just a neutral-sounding veneer over discriminatory motivation. However, the language used in both cases is virtually identical to a family of similar bills adopted by 19 other States and the federal government running all the way back to 1993, and this larger context defies categorization in such a fashion.

The Religious Freedom Restoration Act started out its life as a federal law passed as a strongly bipartisan reaction to the Supreme Court’s decision in Employment Division v. Smith (a case I previously discussed as one of Five U.S. Supreme Court Cases Every Christian Should Be Aware Of).  In passing this law, the near unanimous opinion of Congress was that the government would need to show that it had used the least restrictive means of advancing a compelling governmental interest in order to place a substantial burden on someone’s free exercise of their religion.  In plain English, this law made it more difficult for state or federal law to limit the ability of individuals to live their lives in accordance with their religious beliefs.  In practical terms, this law was explicitly designed to wind back the clock to the judicial standard that had been in place before Smith.

In 1997 in City of Boerne v. Flores, the Supreme Court determined that RFRA could restrict the federal government, but the law would not apply to the states.  In reaction to both Smith and Flores, 20 states have since adopted their own versions of RFRA, with the vast majority of them drawing their language very closely along the lines of the federal statute.2  As the chart shows, the passage of these state laws has continued at a slow, rolling pace since the federal law was first passed (with a spike of adoptions right after Flores), and the progressive trend of adoption provides counterevidence to the notion that this legislation is part of a recent pro-discrimination effort.

Donald Roth (2015)

Donald Roth (2015)

Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000.  This act is structured slightly differently in order to sustain constitutional challenge, and it focuses specifically on zoning issues and the religious rights of inmates, two of the most litigious concerns RFRA had tried to address.  As of yet, this law has been held to apply to both the federal government and the states within this limited scope.  This second measure provides further clarity as to what these legislative efforts function primarily to address.

Given all of this context, there’s no warrant to claim that Indiana’s law was passed out of some recent swell of anti-gay animus or that it reflects a unique inhospitality of the State, and the same thing is true of Arkansas’ bill.  Instead, this legislation is well-seated in the context of a significant body of similar laws aimed at protecting free exercise in a general sense.

How has RFRA been applied?

Even if RFRA was born out of different concerns, criticism might be justified if the history of its various enactments led to either nearly automatic religious exemptions or a pattern of regularly justifying discrimination.  In other words, perhaps anti-gay groups are here taking up a tool that, while couched in neutral terms and other considerations, has a history of enabling discrimination.  As we will see, this is not the case.

Smith held that Oregon was not constitutionally required to provide a religious exemption from its criminal drug laws for the sacramental use of peyote by members of the Native American Church.  A related case in 1988, Lying v. Northwest Indian Cemetery Protective Association, had already said the government did not impose on free exercise by building a paved road through sacred tribal lands.  RFRA was, at its inception, born out of a bipartisan legislative desire to limit future or ongoing harms like these.

However, raising the hurdle that the government has to clear when burdening religious exercise is a far cry from saying that the law creates the blanket religious exceptions that the “license to discriminate” rhetoric implies.  As prominent UCLA Law Professor Eugene Volokh points out, even though the pre-Smith standard sounded like “strict scrutiny,” (a test of the constitutionality of laws often called “strict in theory, fatal in fact”) many laws were found to pass the compelling interest and least restrictive means tests.

By all appearances, this seems to still be the case when it comes to how courts have viewed the various RFRA laws.  For instance, while the sacramental use of peyote is protected, Arizona courts (along with many other states) have rejected a similar religious exemption for marijuana usage.3 Pennsylvania ruled that, despite their religious confidentiality, the Allentown Diocese had to turn over internal documents regarding the behavior of one of their priests for limited review in a murder trial.4 Finally, and probably most prominently, New Mexico (who, it should be pointed out, has a slightly different version of RFRA) rejected an appeal to its version of the law when a photography company was sued for refusing to photograph a gay wedding.5

The various iterations of this law have been around for some time, and it’s important to note that cases based on these laws have certainly been raised successfully.  Probably most controversially, RFRA was found to protect the closely-held Hobby Lobby Corporation from being required to provide contraceptive coverage that the owners believed to cause abortion.6 However, these cases have overwhelmingly not been used to permit private discrimination based on sexual orientation.7 Based on this history, there is no warrant to claim that RFRA, in general terms, is really just a “license to discriminate,” and even if the reason for the success of these specific bills was the hope that they would be, there’s ample reason to be skeptical of their suitability for that task.

Is this version of RFRA different?

The final question, then, is whether there is something unique about these specific enactments of RFRA that, as the Human Rights Campaign has said, sends “a dangerous and discriminatory message.”  As summarized by University of Toledo Law Professor Howard Friedman, the primary differences from federal law (the original RFRA) and Indiana’s law are that it (1) defines protected entities to include corporations, (2) permits the law to be invoked when a person’s exercise of religion is “likely” to be burdened, and (3) permits claiming protection under the law when the government is not a party.

As pointed out by Josh Blackman, Assistant Professor of Law at the South Texas College of Law, the first difference arguably makes no major change from federal law, particularly in the wake of Hobby Lobby, and the second difference doesn’t appear to be substantive.  The final difference may hold some water, primarily because it would prevent a reviewing court from concluding that RFRA didn’t apply, the conclusion the New Mexico Supreme Court reached in Elane Photography.

However, this third difference is at best a potential concern and not a new one at that.  As mentioned above, application of RFRA is not a guarantee of religious exemption, and, as many of the sources I’ve linked to in this article point out, courts have proven unlikely to okay religious exemptions that impose harms (such as discrimination) on others.8  Secondly, an existing split in U.S. Courts of Appeals means that this third difference is the current state of the law in many districts, and it has not yet been turned into a blanket “license to discriminate” in any of them.9

The Arkansas bill is largely similar to the Indiana enactment.  The noticeable differences are (1) the bill provides for the payment of damages and attorney’s fees when the government is a party to litigation, (2) the bill exempts the State correctional system, and (3) the bill characterizes the enactment as a “state of emergency.”

The third difference is a matter of rhetoric which does not affect the substance of the bill, while the second difference demonstrates an exemption which, to the extent Arkansas takes federal funds for its correctional system, makes no legal difference.  The first difference is substantive, but it doesn’t change the judicial standard being applied, and unclear drafting may mean it only applies when the State is a party (that is, it provides relief when the State is found to be directly infringing someone’s rights).  Any or all of these differences are, of course, also subject to change as part of the consideration of the bill by the Arkansas Senate.

In sum, these legislative acts do have some minor differences from the federal law, but they are not unique differences from RFRA in other states (or, indeed, in its application in some federal courts), and the history of the application of the law in these other contexts therefore suggests that there is nothing unique about either Indiana’s law or Arkansas’ bill that empowers it as a tool of discrimination.


For these reasons, as well as all of those mentioned above, it simply isn’t correct to portray the legislative action taken by Indiana or under consideration in Arkansas as an open affront to gay rights. I am not situated to speculate with any great insight as to why this particular line of rhetoric has been taken up, but it smacks to me of a version of the “culture wars” mentality that is common in some Christian circles. Some prominent advocacy groups on both sides have taken the rhetorical position that this is an “us v. them” battle in which anything good for religion is bad for the LGBT community (and vice versa), but this simply isn’t reality.   While Christians are not innocent in the development of this perception, I can’t help but think that LGBT advocates risk doing more harm than good to their cause with such an extreme and adversarial response to the mere chance that a law with a history of enactment and enforcement that has nothing to do with gay rights issues might be enforced in some instances against their interests.  It is tragic that a law designed to increase religious freedom (originally for Native Americans, remember) is being cast as a “license to discriminate,” and if either side thinks that’s what RFRA is, they are seriously mistaken.

About the Author
  • Donald Roth serves as Associate Professor of Criminal Justice, Co-Director of the Kuyper Honors Program, and Director of the Master of Public Administration Program at Dordt University.

  1. For instance, there have been bills considered by other states, such as one passed by the Kansas House of Representatives (Kansas House Bill 2453), which are clearly targeted at permitting businesses to deny service to same sex couples; however, these bills have, like the Kansas bill, failed to pass into law. 

  2. See the chart below for adoption dates and links to statutory text for each law.

    Adoption of RFRA by States
    State First Adopted State First Adopted
    Connecticut Jun. 29, 1993 Oklahoma Jun. 1, 2000
    Rhode Island Jul. 22, 1993 Pennsylvania Dec. 9, 2002
    Florida Jun. 17, 1998 Missouri Jul. 9, 2003
    Illinois Jul. 1, 1998 Virginia Apr. 4, 2007
    Arizona May 19, 1999 Tennessee Jul. 1, 2009
    South Carolina Jun. 1, 1999 Louisiana Jun. 30, 2010
    Texas Aug. 30, 1999 Kentucky Mar. 27, 2013
    Alabama Nov. 3, 1999 Kansas Jul. 1, 2013
    Idaho Mar. 31, 2000 Mississippi Jul. 1, 2014
    New Mexico Apr. 12, 2000 Indiana Mar. 26, 2015


  3. Arizona v. Hardesty, 222 Ariz. 363 (2009). 

  4. Pennsylvania v. Stewart, 547 Pa. 277 (1997) (decided prior to Flores). 

  5. Elane Photography v. Willock, 309 P.3d 53 (New Mexico 2013). 

  6. Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014). 

  7. My research has not turned up a single case where this was successfully claimed. 

  8. See, for instance, Volokh’s excellent article and Indiana University Law Professor Daniel Conkle’s article.  To be fair, courts have divided on issues such as renting apartments to unmarried heterosexual couples, so it is conceivable that Indiana could permit discrimination, but its courts have not done so yet. 

  9. For a breakdown of the Circuit rules, see Shruti Chaganti, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, 99 Va. L. Rev. 343 (2013). 

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  1. Thank you for a clear analysis of this situation and your time consuming research on this current issue!

  2. Thanks for your comment, Phil.

    Part of my claim here is that, even for those who might positively hope the bill protects bakers and florists, it likely doesn’t. There are compelled speech arguments I find more persuasive with some business settings, but it’s just demonstrably untrue that this law would allow, say, an owner of a local restaurant to throw gay couples out of his restaurant.

    My problem is that the response to this bill makes the general assertion that it primarily deals with these “right to refuse business” cases and that it is explicitly and offensively anti-gay. Looking at what the bill actually does and says (based on a language and history which predate the issue), neither is the case.

    The primary charge here then is guilt by association. To make an analogy which I should strictly clarify is not meant to cast aspersions in either direction: if the Klan votes for a bill, even if they say it benefits them, that doesn’t mean that (1) the bill is now racist, or that (2) the bill actually does that.

    1. Phil is right. Pick any culture warring pundits you like, from Glen Beck to Focus on the Family, and they are very clear that their hope and support for the RFRA lies in its ability to allow them to practice their faith in ways that amount to discrimination. That is why this issue has reminded some of Newman v. Piggie Park Enterprises (1968) which involved a racist Christian who fought his way to the Supreme Court for the right to stop black Americans from eating at his restaurants. As backward and frivolous as this type of agenda may be, it’s inaccurate to say there is absolutely no special threat to the civil rights of LGBT people in the Indiana legislation or that the pro-civil rights side is overreacting.

      Indiana’s version of RFRA is highly unique on the points you glossed over. You really cannot say they are harmless until they are tested in the courts, as we can all be sure they will be. The main threats perceived by those concerned with civil liberties are as follows:

      (1) Indiana’s RFRA extends protection for “the free exercise of religion” to commercial businesses — a protection previously only given to churches and individuals. Only Texas’ RFRA has similar language. It also would allow a business to bring suit against anyone deemed to be violating the business’s “free exercise of religion.” This could mean countersuing an individual who brings a civil rights case against the business. Only South Carolina’s version of RFRA has this provision; other states specifically exclude businesses.

      Yes this is reminiscent of Hobby Lobby — it builds on that controversial decision, which is why it is such a big deal. Increasingly we seem to be developing the idea of “corporate personhood” in a way that allows businesses to function as churches at their worst. If “institutional conscience” is pitted against individual conscience it will not be on an equal footing. We can have no doubt which side the law(yers) will favor. This is problematic for all kinds of reasons, but why not consider the Kuyperian ones for starters?

      (2) Indiana’s RFRA uses language from the Supreme Court’s decision not to hear Elane Photography v. Willock. This language is used in a way that would have prohibited the Supreme Court from making that decision. This seems intended to compel the Supreme Court to hear similar cases in the future and to uphold Elane’s right to discriminate against gay couples.

      I’m puzzled why you would say that people concerned with civil rights for LGBT Americans should just lay down for this “harmless” legislation and let it pass without any reaction. Why should they not engage in “culture warring” themselves after being hammered by the religious right for decades? Having torn down “public neutrality” (and civility) with religious identity theo-politics, the chickens are coming home to roost. That’s justice.

      1. Thanks for your comment, Anthony.

        There’s every reason to say that the LGBT advocates are overreacting if the legislation passed doesn’t accomplish what they fear or specifically target them. Part of my point here is that, regardless of what Glen Beck might be supporting the law hoping it will do, that’s not what the law is about. The broader context is that this law was designed because of a feeling that the Constitutional standard announced in Smith is inadequate (frankly, it is, as it really demotes free exercise to a secondary right [if that]), people might have jumped on the bandwagon of that perception because of more recent concerns, but that doesn’t fundamentally alter what the law is about (hence why I included the chart showing the steady upward trend of adoption… this isn’t a law coming out of the blue).

        Further, the law isn’t being treated as a potential threat, the language being used here makes it sound like Indiana just hung a klan hood over its head. We have cities and businesses totally abandoning the state and even prohibiting travel there when the law itself is not all that unusual.

        As to the “highly unique” nature of Indiana’s law, I pointed out how it’s really not. The recognition of corporate standing is explicit, but Hobby Lobby already more or less accomplished that… an explicit statement of what the law already is in another setting isn’t unique. Furthermore, the status quo in about half of the federal appeals circuits that have decided on this is that the government doesn’t need to be a party to the litigation to raise the RFRA defense. In other words… this is again already the status quo in a significant number of courts, and we haven’t seen this as a basis for a wave of pro-discrimination decisions. Sure, Elane Photography determined that RFRA wasn’t implicated, but, frankly, the stronger arguments there have to do with the notion of compelled speech. The old Sherbert-era version of the “strict scrutiny” test for religion is much weaker than the genuine strict scrutiny applied to speech issues, so yes, we may see an Elane Photography sort of case in the Supreme Court eventually, but my money’s on the speech or speech/free exercise hybrid issue being the one more likely to prevail on the merits (if it even does).

        As to your last comment, I’m not a fan of overblown rhetoric on either side. I’m thoroughly unconvinced by the notion that being “hammered” by one side means that justice calls for you to give back in equal measure. It’s unbecoming of either side, and it only really sets us up for a lash and backlash response. For instance, one of the best explanations for why there’s a developing demographic of the younger generation as being more against abortion and for gay marriage than older ones is that young people can buy the argument that someone is being harmed in both cases and side with the victim. Pursuing businesses for the purpose of litigation, boycotting entire states, and working to make sure that anyone in a large company you disagree with is fired starts to make the activists look like the aggressors, something I don’t think will be beneficial for the movement (or anyone) in the long run.

        1. RFRA is hardly being attacked by “LGBT advocates” or any single interest group. NASCAR and Wal-Mart have weighed in against it. If this is all due to religious conservatives trying to misuse RFRA in their anti-LGBT crusade, then your admonitions should fall on them first and hardest.

          Consider the possibility that this legislation created by liberal Democrats in the 1990s has changed significantly, and more importantly the legal, cultural and political context for it has changed. Advocates of religious bigotry have seized on RFRA as an anti-gay weapon. After Citizens United and Hobby Lobby it IS a potent weapon if it extends freedom of religious expression for businesses and gives them the right to countersue people who bring civil rights cases against them.

          Religious conservatives generally have been told and believe that RFRA can protect religious liberties by allowing religious business owners to refuse to serve LGBT customers. Isn’t that the real problem for Christians to deal with — the ignorance and hostility in their own fold that paints all religious conservatives as sex-obsessed bigots?

          Today I received a “survey” from the GOP that is chock full of fearmongering, lies, and slander. The Reverend/Candidate Huckabee recently issued a similar “survey” that included a question of whether the US should be positively established in law as a “Christian nation,” to heck with the Constitution. Most of the respondents said yes it should. This is the daily lived context of the Christian kulturkampf. We can’t push it off as a remote activity to be laid at the feet of TV and radio pundits. Christians must own up to what they have done or allowed to be done in Christ’s name.

          I don’t see your predictions panning out. Instead I think we will see more and more aggressive intolerance for aggressively intolerant religion until the latter is driven out of the mainstream for good. Indiana had a klan hood over its head for most of the last century, so there’s no justice or righteousness in crying for them. As the Bible says about the sins of the fathers, sometimes it’s not about justice it’s about simple consequences and a past that has to be lived down.

          You’re probably right that younger people can more readily “buy the argument that someone is being harmed” when they are denied equal rights. The question is, why can’t older people buy it too? Pursuing businesses for the purpose of litigation, participating in national boycotts, and working to make sure that people one disagrees with (or deems a special sinner) are singled out for shaming and rejection rituals sounds like the pro-LGBT side is just catching up with the things Christian culture warriors and abusive religion have always done. This has been the air we breathe in churches and Christian communities for decades.

    2. When the Indiana Klan voted for a bill to prohibit Jews, Catholics, and assorted non-white people from starting their own private schools and said this benefited all white native-born Protestants, that didn’t mean (1) the bill was necessarily racist, that (2) the bill actually would work as advertised, or (3) that people of good conscience concerned for their neighbor should just sit by and say “oh, it’s just a tempest in a teacup.” Try to think about it from the minority perspective a little.

      As Thoreau said, “Some circumstantial evidence is very strong, as when you find a trout in the milk.”

      1. Hi David,

        Based on the structure of your comment, I’m assuming you’re referring to my comment, but I could use a little clarification as to what you’re getting at. I’m particularly interested in what you mean by point (3) and the minority perspective issue.

        I don’t want to respond unless I understand what you’re getting at, because, as I’m understanding it, you seem to be saying that one should not vote in favor of even a good bill if the Klan seems to think it’s a good idea (even if they’re wrong in their beliefs about that bill).

        1. I am saying that one should not support but seriously question the idea that it is “good bill” if a group like the Klan starts supporting it and has started to influenced aspects of it. If you’ve got the Klan saying it’s a good bill that supports their discriminatory agenda, and the favorite targets of that agenda agree with them, maybe those views should be taken seriously. Dismissing them as equally uninformed and claiming to know for certain the bill will never be used as they respectively hope and fear seems like a bit of a non-starter. Finishing off by advising groups you don’t support as to how they should understand and advance their own interests is the coup de grace to any persuasive goal.

          If you were the threatened minority in this case, would you believe you? When the president (not a legislator) made a minor comment touching on religious liberty only by a big stretch of the imagination, you argued it could be the setup for a policy of aggressive anti-religious discrimination. Yet when it comes to RFRA you’re completely aloof whilst so many others are up in arms.

  3. Donald,

    Thank you for showing that the RFRA has not been primarily to sanction discrimination based on sexual orientation. But the concern from the LGBT community and its supporters seems to be more “Can it be used for that?” than “is that all it can be used for?”

    In the article, you claimed that the RFRA has “overwhelmingly not been used to uphold private discrimination based on sexual orientation.” So support this claim, you said in footnote 7 that you have not found a single case where RFRA laws were used to uphold the discrimination of LGBT people. I’m wondering, in your research, how many cases you came across where people tried to use RFRA to legitimate private discrimination based on sexual orientation and were rejected. That is, have people tried to use the RFRA to protect LGBT discrimination and been rejected, or has no one really tried it? You cite the example from New Mexico, but the IN law seems to have been designed purposefully in such a way that the precedent set in the NM case would no longer apply.

    Is there other explicit (and not merely inferred) legal precedent suggesting that RFRA does NOT sanction such discrimination, or is it mainly that no one has tried, and so we can’t know for sure how a court would rule? This, I would think, would factor heavily into whether or not there is “ample reason” to be skeptical of the RFRA’s ability to be used to legitimize such discrimination.

    1. Thanks for the question, Neal.

      For the most part, this specific issue seems not to have been litigated in RFRA states, although some related cases have been. The closest potential is Kentucky’s Human Rights Commission citing Hands On Originals for refusing to print shirts for the 2012 Lexington Pride Festival. That case is (1) not litigation, but agency adjudication, and (2) bridges both sides of the time when Kentucky passed its own RFRA (started before, completed after).

      Otherwise, the direct cases dealing with this specific issue include Elane Photography (said RFRA not implicated), the Masterpiece Cakeshop case in Colorado (not a RFRA state, and before an agency again), Ingersoll v. Arlene’s Flowers (not a RFRA state), Baker and Linsley v. Wildflower Inn (not a RFRA state). The individuals in all of these cases lost.

      At the same time, the record is mixed at best on issues of similar claims for accommodations. For instance, there have been a few cases where landlords have been allowed to choose not to rent to unmarried heterosexual couples, but the examples are matched in number by contrary conclusions and a handful of just plain confusing cases. At the same time, something as similar to the original case of peyote in Smith (marijuana) didn’t even make the cut in Arizona, DC, and other places, suggesting that RFRA’s provisions aren’t as absolute as they might seem.

      A lack of exceptions is fairly essential to a nondiscrimination legal regime (i.e. a “compelling interest” which requires extremely limited, if any, exceptions), and many of these states (though not all) do have other laws in place favorable to LGBT interests. For instance, Indiana allows same sex marriage and protects partner adoption. There’s a chance that some of the compelled speech cases could win under RFRA, but I just don’t see this creating some general right to discriminate. The idea that this bill somehow authorizes kicking people out of a restaurant for being gay seems like a stretch, given other caselaw.

      In other words, things are up in the air to some degree, but the precedent and history of application seems to be behind LGBT interests. I’m still not terribly comfortable with the idea that a shirt-maker would have to create shirts advertizing something that person personally opposes (following this application would mean a black business owner would have to print klan memorabilia and a Jewish business owner would have to make neo-nazi shirts … all as part of the general cost of wanting to make a living making shirts), and there are other cases similar to that for me, but I really categorize those primarily as issues with compelled speech, which religious freedom could be a component of, but speech is really the more robust right in our system. Those issues may show up in the Supreme Court at some point soon regardless of anything to do with RFRA.

      1. These shirt maker, cake shop, and deli owner analogies seem to originate with Iowa talk show host Steve Deace and activist Bob Vander Plaats. They’re very popular ideas, but are they truly a solid cause for fear, uncertainty and doubt about the adequacy of protection for business owners’ consciences under existing laws? I don’t believe they are at all.

        Just because you make shirts, that doesn’t mean you can be forced to make any kind of shirt a customer wants. If you’re a Jewish deli that closes for the Sabbath and your food is kosher, nobody can order ham sandwiches on Saturday or any other day because you don’t offer that to anybody. But if you rent space for weddings or tenants, you can’t exclude gay tenants for being gay. Can you refuse to make a cake that has two men on top and their names on the icing? Probably yes if you can demonstrate it will require new costs and procedures to make “gay wedding cakes” that you’ve never made before.

        Beliefs have nothing to do with these situations unless beliefs lead a person to discriminate against a particular type of person by refusing them the goods and services normally provided to everyone else.

  4. If by this you intend to argue that there’s nothing new here, at least in legal terms, I’m not sure why that characterization should encourage me to believe this law (in my state of residence) really has nothing to do with discrimination or why it should quiet related concerns. I’d like to remind you that Indiana residents do not currently enjoy protection from discrimination on the basis of sexual orientation or gender identity at the level of state law.

    Additionally, I’d like to point out the obvious: that there is a long history of such discrimination, and it does not often rise to the level of litigation. Gov. Mike Pence has not only refused to address this very question, but also has indicated that protected status for sexual orientation is not on the docket. The playing field is not equal, and those who are concerned about discrimination against LGBTQ folks are rightly aware of the cultural weight of the vitriol leveled against them in many religious contexts. Finally, laws are important, not just for legal precedent and actual enforcement, but also as shaping what is and what isn’t accepted as tolerable behavior.

    Christians of all people ought to be the first to grapple with systemic evil: to name it, and to be willing to abolish it, even at great cost to themselves. We of all people should also expect that the human heart tends to protect the self at the expense of the other, and we should be particularly mindful about the way sin clouds our judgement and self-knowledge. That is to say, we should be on the lookout for this impulse to discriminate, and proactive in our engagements with each other. I think you’re giving the benefit of the doubt to the wrong possibility.

    1. Melissa,

      I agree with you that there are more issues at stake here than just the legal implications of the new law. Given his expertise in law, we asked Donald to focus on those legal implications, and not some of the other factors. I would hope that those concerned with discrimination (which, I would agree with you, ought to include Christians) would be comforted that, legally speaking, it is highly unlikely that the new law will legalize such discrimination.

      Of course, that discrimination is not legal does not mean it will not happen. You are entirely correct about that as well. I’m reminded of what Scott Culpepper said regarding the culture war mentality in his post from last week: it “all too often seemed to prefer demolishing cultural strongholds by brute political force to the much harder task of winning heart and minds. The end result was that [it] neither demolished cultural strongholds nor won hearts and minds.” So, building on your comment below, how could those concerned with discrimination against LGBT people work, not only to ensure that such discrimination is not legal, but that it does not occur at all? In this regard, it’s not just about protecting legal rights (though that obviously is important and has an important place in the conversation), but about something more. How do we work toward mutual love and respect between the LGBTQ community and the Christian community?

      1. Thanks, Neal. One good place to begin might simply be to listen. What I hear from LGBTQ folks is that this is a real concern for them, even if it’s only a perception that this makes more room for discrimination that’s already happening. If I were a business owner in Indiana, given the particular protection granted to businesses, and public concern as to what that might mean, I think I’d post a sign that made it clear that I welcomed and respected all my prospective customers.

        One thing that I would remind all sides of is that there are many LGBTQ people who are also devoutly religious. Quite a number of these are our brothers and sisters in Christ. Religious freedom must encompass their freedom, too.

  5. A further thought:

    If those who lobby, vote, and advocate for such laws were invested in protecting the legal rights of LGBTQ folks, we wouldn’t be having this conversation. Why not pursue that opportunity, instead?

  6. Given the volume of comments after I decided to prioritize family time over response time (and given my workload) I’m going to try to respond to the variety of responses you’ve all given in a more general sense. I apologize if I’m overlooking a key issue you were hoping I would respond to, feel free to call me on the carpet for it, and thank you for continuing dialog.

    There is a level of distinction between why people want a law and what a law itself does. It’s fair to say that problems with the first might lead you to suspicion of the second, but, if at closer inspection, the mechanism of the law itself is not to “legalize hate” or a variety of other claims I’ve seen. It is not fair to then categorize the law itself here as some backward throwback to pre-civil rights era discrimination, which is very much what the general tenor of response has been.

    What is the actual mechanism this law uses? It changes the standard for an imposition on religious exercise to what it was before Employment Division v. Smith. It creates the potential for an individual exception when the government passes a law which places an undue burden on free exercise, one that, at its inception is aimed at overlooked minority cases. We should remember what Smith said, namely that the government, so long as it wasn’t targeting religion, did not need to make any exception to a neutral law of general applicability. That meant that a ban on drugs, like peyote, could make a central sacrament of a minority religion illegal. That’s all the protection the Constitution, to this day, provides. In a non-RFRA state, the state could ban alcohol (that’s still within state power), and it would not have to make an exception for communion wine. Conceptually, a state could make a nondiscrimination law which brooked no exceptions, something which was originally called for with ENDA, which saw a massive drop off in support with the addition of a religious exception. Given a lack of exceptions, this neutral law of general applicability could strongly interfere with hiring for organizations like Dordt, and it could even conceivably interfere with the operation of churches. In CLS v. Martinez, a UC Hastings “all comers” policy was upheld to justify ejecting the Christian Legal Society unless it was willing to change its membership requirements to allow people of other faiths and orientations to not only join the group, but lead it. Basically, so long as society is generally willing to abide by certain rules, it’s Constitutional to force virtually anyone to comply.

    What RFRA does is create a potential for an exception when the government’s pursuit of its legitimately compelling interests are not tailored in a way that leave adequate room for religious exercise. So, to speak to a specific application here, this means the limited use of peyote in religious ceremonies trumps a general interest in combating drug use; however, the broader right to use marijuana that was claimed in some of the cases I’ve mentioned (in one instance, the party claiming RFRA alleged he could smoke marijuana while driving because it was religious) was not compatible.

    One way to look at it would be to ask what happens if religious claims were widespread. If everyone were a member of the Native American Church, the use of peyote would be much more common, but still limited significantly. This would not be the case with the proposed marijuana exception I mentioned. Taking this to the sphere of discrimination, a government interest in ending discrimination (compelling) is not likely to trump the right of a church to self organize or a religious nonprofit to self-regulate. On the other extreme, an application of nondiscrimination law that prevented restaurants from hanging a “no gays allowed” in the window would likely not have to create an exception for those who said “but my religion means I really hate gays.” There are some tougher cases when we talk about forcing a printer to make shirts for your pride festival or a cake decorator to create a cake for your wedding. On the one hand, society doesn’t want these services to become totally unavailable to LGBT folks (everyone discriminating), but at the same time, the aspect of compelled service here would be strained if, for instance, this allowed for a situation where a cake decorator, florist, and photographer were forced to work a party where they faced potential lawsuits if they showed anything but total happiness and support for people telling them how hateful and awful they were. (to be clear: I’m not saying this is happening, but it’s an extreme the other way to show the compelled speech element here that makes this trickier)

    Maybe we’re totally off track here, but the central point I’m trying to make is that the standard that RFRA creates is neither a bad standard nor one that is explicitly discriminatory (despite, again, being characterized as exactly that). Might it pose some barrier to the most far-reaching nondiscrimination laws that folks might want to pass? Potentially, yes, and if that’s the standard of what’s “licensing discrimination,” I suppose I should concede. However, I tend to be of the crowd that thinks that part of the cost of a civil system which respects free beliefs (via both expression and religious exercise, but really mostly the former) is that we might not ever be able to use the arm of the sword (laws) to totally stamp out things we don’t like (such as discrimination), and that’s still probably for the best. This is where I’m consistent with my criticism of Obama… I don’t want the government in the business of saying what is or isn’t my (or anyone’s belief), and I want there to be at least some barrier to the government walking clear over a belief simply because they disregarded it (the Smith standard essentially says that as long as you don’t mean to hurt religion, you can). I don’t think that adopting this standard creates a blanket authorization for discrimination, and I particularly don’t think it authorizes it at all in the specific context of restaurants and other pure-service businesses. There are cases that I think are admittedly more difficult, but they involve more than religion and so may see resolution whether RFRA exists or not, meaning that this bill is not creating those issues. Overall then, I don’t think the bill itself, regardless of why it’s being supported, is actually what it’s being portrayed as.

    1. I don’t think anyone disagreed with you about RFRA’s general history and intent; nobody claimed it was “some backward throwback to pre-civil rights era discrimination.” I don’t see that as “the general tenor of response” here at all. What has been questioned are the unique details in the current Indiana version of RFRA and maybe a few others that have been colored by culture warring over “gay marriage” and so on.

      I think you drew some incredulity and disagreement by arguing that Indiana’s (or any state’s) version of RFRA should not be opposed, that it’s against pro-LGBT interests to oppose it, that LGBT people really have nothing to worry about from RFRA, and the current controversy is a matter of outside agitators bullying a wholly innocent bill and state. This completely skirts around the cultural context, the real life experience, and the reality of discrimination that has been poured on the issue by the losing side in the gay marriage wars.

      The Indiana house minority leader recently said RFRA “absolutely was a consolation prize” in the aftermath of last year’s attempt to ban gay marriage in the state. This seems very plausible and points up how this controversy amounts to Indiana conservatives being hoisted by their own petard.

      The Indiana House’s speaker pro tem, Brian Bosma, has made points similar to yours but also admits there’s nothing in current state law to stop businesses from putting up “no queers allowed” signs or refusing to do business with people due to their sexual orientation. (Only the four biggest cities in the state and two counties prohibit discrimination on the basis of sexual orientation.) That is hardly reassuring; he could have added a remark about this being a bad idea because federal law would likely not support it, but what he should have said is that it’s simply the wrong (because uncharitable and uncivil) thing to do. Instead he left the implication that we’ll leave this to be fought out in the courts by uncivil and angry people with deep pockets or just a lot of pride.

      Indiana TV reporters had no problem finding a pizzeria whose owners might fit that description. They were happy to say on camera that homosexuality is a choice, and while they will not discriminate against anyone who walks in, they would choose not to serve pizza in connection with any gay marriage ceremonies. These people think RFRA does intend to protect them in this choice.

      A the end of the day, there are plenty of people with more and less tepid urges to discriminate against LGBT people, and as you say “things are up in the air to some extent” legally. There probably will be litigation involving businesses like this Indiana pizzeria, and even if discrimination loses (as I agree it probably will), and even if RFRA is pointlessly brought into the mix, LGBT people will have to slog through this fight to achieve a reasonable measure of equality with the rest of us. When things get this dirty and the waters are so muddied, are legal arguments alone the needed answer? What is the place for grace? I find nothing in the New Testament to suggest that refusing to feed or serve people is an appropriate response to sin or anything else. Refusing to eat with others is distinctly not what Christians did; they even decided consuming meat associated with idol worship was not something to avoid on principle because fellowship and the bonds of comity, even with pagans, mattered more. We as a country are hungry for legal and political opinion leavened with this sort of spirit.

      Thanks for explaining your views on the law and discrimination further. It does clarify for me the need to oppose RFRA for the very reasons it has been opposed lately — as a potential hindrance to the full civic enfranchisement of LGBT Americans and their equal protection as a class of people. Even if this is just a way to make a cultural and political point rather than an important legal impact, it will be worth it. I cannot disagree strongly enough with you that what we need to enjoy true freedom is tolerance for discrimination. Discrimination and bigotry are not things one simply “dislikes;” they are not fried liver and onions. They may always be with us, but they are a matter of deep misanthropy. Discrimination and bigotry are rooted historically, psychology, and theologically in a denial of the fundamental spiritual equality of all people. (All are equally lowly, depraved, and loved.) When we hole up in our comfortable tribes, when we justify creating and singling out “Samaritans” for rejection and exclusion from community (whether civic or ecclesial) we are denying that they bear the image of God. It amounts to an effort to blot out God’s presence in them and turn our backs on Christ’s call to unity, love, and service. Inevitably it leads us to say in our hearts that the outcast is less than we are because there is some special defect in their very being, and this leads us to act as if we have rightful dominion over them.

      You seem to find it self-evident that non-Christians should be excluded from a Christian legal society — or at least the leadership. Why? The “all comers policy” has had wonderful effects. Hillel, the largest Jewish student organization in the country embraces non-Jewish members, especially Muslim students. They have, in some chapters, encouraged Muslim students to take leadership roles. Nobody thinks this means Judaism is being redefined or threatened in any way by Islam. The only situation where there has been a problem with “all comers” has been some InterVarsity Christian Fellowship chapters that want to expel and prohibit new members who are in or simply support homosexual relationships. They contend that this makes you no longer a Christian by their own (revised) creed. The contrast with Hillel is striking. What would Rabbi Hillel and his apparent fan, Jesus, say? Hillel is famous for the earlier, inverted form of the “golden rule” as stated by Jesus: “That which is despicable to you, do not do to your fellow, this is the whole Torah, and the rest is commentary, go and learn it.”

      1. David, thanks again for continuing the discussion.

        I should have been more clear as to the “general tenor” issue. I mean the public response, particularly from groups like HRC and GLAAD, even the comments of Hillary Clinton. Their response has very much been that they are flabbergasted that a law this backward could pass in modern America, and that’s the reaction that I strongly reject. The point of my article was that the “unique details” of Indiana’s law either aren’t really all that unique (historical context, etc.) or the uniqueness is non-substantive. The mechanism of the law does a certain thing, and that mechanism is not keyed nor primarily oriented toward discrimination. My point is that the mechanism isn’t bad, and the law itself then is not about discrimination.

        I’m a little bothered by a sentiment I read in both you and Anthony that seems to say Christians who engaged in the culture wars, now that they’re losing on this issue, deserve to lose just as hard as possible. If the tactics used by Christians before were wrong (and there are definitely cases where that’s true), that does not make the equal and opposite reaction suddenly just.

        We agree that groups should not be able to throw people out of restaurants because they want to discriminate against them. I totally agree that the idea of providing food and drink in Scripture does not involve kicking out the Samaritans. At the same time, you’re mischaracterizing the consumption of meat thing. In fact, what Paul says in 1 Corintians 10 is that Christians could eat meat without worry, but that they shouldn’t if someone said “this has been offered in sacrifice.” The idea was that the meat was okay because meat burned before a wood statue was still meat; it’s an affirmation that the false gods were no gods at all, but it came with a guide to conscience both for the weaker brother and the pagan perception. I’m bothering to chase this aside because there would seem to be some analog here to the difference between serving someone in a normal setting and being asked to participate in a service with them (again, assuming you find the service to be a celebration of a sinful and unlawful union). While it’s important to remind ourselves that all people bear the image of God and we should love our enemies, we cannot totally forget that we are still set apart, not of our own worth or merit, but set apart nonetheless.

        Perhaps I’ve lost any sympathetic reading at this point, but I don’t mean this in a personally combative sense: The ideas that make up your last two paragraphs are precisely why I think RFRA is a good idea. The problem with law is that it is fundamentally ill-equipped to change hearts and minds. In fact, it doesn’t care about that and accomplishes its goals through the sword. One of the tricky things with discrimination, if we care about freedom of belief at all, is that, no matter how despicable we find it, a law designed to push or punish people until they stop believing what we don’t like is a bad law. You characterize discrimination (without distinction, although I invite you to make any that apply) as “deep misanthropy.” That would seem then to suggest that an organization like Dordt College, which discriminates in hiring based on religion and which conditions employment on certain personal behavior (including abstaining, among other things, from what it deems sinful sexual behavior or its advocacy) is fundamentally misanthropic and serves only to perpetuate a dehumanization of our fellow man in a way that destroys our Christian purpose. Is this your contention?

        The problem with the Smith standard is this: if you don’t mean to hurt religion, you can. A broad nondiscrimination law would forcibly change the way Dordt operates by prohibiting religious discrimination in hiring, and the school would have to be not just silent, but positively affirming of extramarital relations. (It couldn’t act against those who married their partners or openly sought same sex relations on campus, and, by the fact that discrimination is a two way street, it would not then be able to condemn heterosexual couples for the same.) This isn’t an ideological overreach. If, say, a Muslim, applied to teach at Dordt and was declined when Dordt hired a Christian, that person could sue on the grounds that Dordt preferred a Christian and that the rest of Dordt’s profs are Christians, establishing a clear pattern of institutional discrimination. The college would either be sued out of existence or forced to fundamentally alter what it is. Again, the Smith standard allowed the law to ban a religion’s (and not a fringe religion, although it is a minority one) sacrament. It seems to me that you’re saying that that’s a good standard as long as it lets you stamp out discrimination to the very utmost of its expression, and I’m saying that doing that would at some point have to compromise the fundamental balance of rights that our country was founded on.

        Again, I may be taking your point farther than you intend, so I invite correction, and I will fully concede that if what I’m saying seems to you to be a license for discrimination, then my analysis here, at least within the definitions you’re supplying would be wrong. Any law that provides an ounce of protection to a belief you don’t like, even as a potential side effect, is discriminatory and yes, RFRA, by that standard, would be something that should be repealed across the board, at least until this pernicious belief is eradicated.

        1. I haven’t taken a position in favor of Smith. I understand how you fear it might be used. If it is so important to update Smith to protect Christians, it seems to me you ought to be addressing those who have sold RFRA as protecting Christians by attacking and limiting the freedoms of LGBT people who are in many cases Christians themselves. That is what has caused the public furor and set back the larger legal agenda you value, yet you want to point the finger at GLAAD and Hillary Clinton.

          The public and political reaction to any controversial legislation is always objected to as illegitimate by people who like the legislation and insisted on for its relevance by those who don’t. You can pick and choose the ones you like and dislike, as you have, but let’s not pretend there is some objective, neutral standard being appealed to. Since you’ve admitted ways in which RFRA might be used against LGBT folks, and there is ample public support for that agenda (plus the various other concerns that have been noted about Indiana’s bill and the post Citizens United context) I think you also have to admit it is understandable why some people see the potential for harm to their interests in RFRA. People in that position can react in all kinds of ways, and in a large population there will be much that is disagreeable. There is nothing that can be done about it except to encourage one’s own audience to be as civil as possible and to try to understand the other side better.

          I do not believe Christians deserve to “lose just as hard as possible” just because they took part in the “culture wars.” Losing is just losing, and Christian culture warriors deserve to lose because their tactics and strategy were wrong, their leadership was wrong and undeserving, and they were all just wrong. I don’t mean that they were “mean.” I mean they were wrong, even from a totally Machiavellian standpoint. They failed to be loved, and they failed to be feared; now they are despised and vulnerable in a weak position. Politics is a bloodsport; we’ve never called the winners based on who is fair and just.

          If bloodsport is not your calling, it’s possible for political debate to be done in more genuinely intellectual, honest and civil ways, but that requires, again, seeking to truly respect and understand the Other. Oxford style debates fit that bill in a way, or the kinds of moderated panels only heard nowadays in the US on public broadcasting. This has always seemed to me like a ripe field for Christian service and redemption, but sadly no one has ever taken it up. Maybe Mike Huckabee tried, briefly, before succumbing to the demagoguery of bubbas versus latte loving liberals.

          The point with St. Paul on meat sacrificed before idols is that he doesn’t say Christians must take a stand against it. He says it is the “weaker brothers” who are doing that. The mature person understands that meat is meat, the idols are meaningless, and God doesn’t care if your meat is idol-free or not. This should apply in the present context as well, where immature Christians wish to take a stand on a contrived principle against people whom they can’t see as “just people” because of their ethnicity, gender, color, creed, and/or sexuality. The biblical text has no relevance to a situation where you’re asked to participate in service or ritual you’re uncomfortable with or believe is wrong, and that scenario has nothing to do with anything facing Christians today. Idols and sacrifices were common in the ancient world. Weddings for gay people will always be uncommon simply due to the demographics, and being asked to provide food for them is hardly being asked to participate in the service.

          I’m not sure what you mean about “we” being “set apart” against our enemies. I don’t believe this kind of separatism and presumption holds in most Christian theological traditions, in the mainstream of the canonical traditions. It is not how Jewish people understand themselves or the covenant either. Even across the range of Reformed traditions, it is problematic to casually make hard and fast distinctions between the saved and the damned or to assume the former is roughly identical with “the church” and people who are really “with you” ideologically. Speaking again of 1 Cor. 5 Paul says Christians must not associate with other Christians who are not only sexually immoral but greedy, idolaters, slanderers, drunkards, or swindlers. He says don’t even eat with these Christians, but he doesn’t deny that they are part of the church, and those are the only people he says Christians have any business judging. “What business is it of mine to judge those outside the church? Are you not to judge those inside?” Jesus himself said “the tax collectors and the prostitutes are entering the kingdom of God ahead of you.”

          Speaking from experience, I know thinking in an us versus them way puts me in a mindset where it’s impossible to be genuinely caring, engaged, responsive, and open to others because the main issue is always, “is this person my enemy or not?” This approach tends to maximize differences, conflicts, and divisions. It is the misanthropic stain in the human heart, and conditions of social pluralism tend to bring it out strongly.

          Again, I have no interest in legislating changes of heart and mind by punishing “thought crimes” and criminalizing beliefs. I don’t think that can be done, and I’m not aware of any legislation that has ever had that agenda. Again, discrimination is not a matter of behavior based on subjective beliefs we dislike but on the objective barring or exclusion of certain classes of people identified by some intrinsic quality rather than any choice or behavior on their part. This can and should be prohibited, no matter what ideas and beliefs justify it. Discrimination is generally motivated by misanthropy, but the law cannot be against misanthropy — just the act of discrimination. That doesn’t mean there aren’t tolerated exceptions. If an employer doesn’t want to employ or admit ethnic minorities, women, LGBT people, Jews, Buddhists, Muslims, and/or Christians of various creeds and beliefs, this can be done if you are a private, non-profit, religious entity that receives no federal funding.

          It depends a little on the particulars, but I do see even this sort of discrimination as wrongheaded, misanthropic, and contrary to a true Christian identity and purpose. It’s also not common. Even in the CCCU ideological or affiliation-based litmus tests and quotas are neither uniform nor predominant. The CCCU’s extensive list of affiliate members (including Fuller, Baylor, Pepperdine, Samford, Franciscan Steubenville) do not subscribe to the curriculum and “hire only Christians” criteria. Many of its full members further specify what kinds of Christians can be hired which often excludes those who would be perfectly acceptable at other member schools. This may suggest to you an image of religious freedom, but it seems quite a bit less than the unity and love that Christ mandated.

          If we’re talking about a church or monastic community, that would be a bit different. In those cases it may be quite traditional and essential for them to screen out classes of people by gender. They may also exclude people who have committed certain enumerated sins. I can’t however imagine many other employers hiring and firing based on sexual history, forms of sexual activity, marital history, contraception usage, and so on. I don’t know what your situation is, but it’s unlikely you’ll be able to exclude Christians simply for being gay, and it may be very difficult to apply a biblical moral standard to proscribe homosexual activity unless you poke into heterosexual people’s lives with an evenhanded level of biblical scrutiny.

          In the past every college in this country probably practiced discrimination in many of the now protected categories, but the historical trajectory for even the most conservative institutions is toward less and less discrimination based on intrinsic qualities in human beings. This is not due to some type of coercion of conscience through legislation, but it has been assisted by legislative and other structural changes that limit the opportunity for discrimination just as the decline in the abortion rate has been assisted by legislative and other social change.

  7. For those who believe that the state would to go after religion and religious orders directly, I give you this:

    In the Fairbanks case, a church refused to sell property to a gay couple. The couple sued. The Attorney General of Massachusetts is filing the above amicus brief in the lawsuit, contending that the Catholic Church must sell the property to the couple.

    1. It’s hardly “going after” the religion or the religious group to rule that people selling property cannot put it on the market and then decide to refuse offers from buyers because they are some class of person. It is perfectly possible to sell property more exclusively, but this particular group was not thinking ahead. Call it “seller’s remorse.”