What’s really at stake with the Indiana religious freedom law? Before forming conclusions, a little history might help.
In the infamous 1990, so-called “peyote case” out of Oregon, the U.S. Supreme Court eliminated its own “compelling interest” test. The compelling interest test said that whenever the government infringes on religious freedom, the government must show a “compelling interest” for having done so. The law or regulation also had to be tailored in the least intrusive way possible. Without the compelling interest test, any “generally applicable law” would be constitutional no matter how much it infringed on religious practice.
After the Oregon case, all the government needed to show was that the law was not aimed specifically at a religious group.
The elimination of the compelling interest test was alarming because it meant that religious individuals and groups no longer had any claim of exemption from otherwise neutral laws that in fact discriminate against religious free exercise. Out of that concern arose probably the most bipartisan law passed in my lifetime (and I’m 58 years old) — the Religious Freedom Restoration Act (RFRA). This act restored the compelling interest test, putting the burden of proof back on the government whenever its laws and regulations infringe on religious freedom.
But the Supreme Court gutted the part of RFRA that applied to states. In response, many states, including Texas, passed their own RFRAs. These mini-RFRAs say that whenever a governmental law or regulation infringes on religious freedom, the burden of proof will fall on the government agency to show a compelling interest for the law. By way of example, it’s not very hard for the government to show it has a compelling interest in disallowing a religious practice that requires infant sacrifice or racial discrimination.
Now to Indiana. Until about a week and a half ago, Indiana did not have an RFRA. Now it does, almost. But Indiana’s law was passed in a new era. We are now in a situation where protection against discrimination has run headlong into the right of religious freedom. So the scenario essentially became this: If Indiana had a law barring discrimination against gays, which ironically Indiana does not, would a photographer, cake maker or florist be guilty of discrimination for refusing to work at a gay wedding? Could religious photographers claim that the anti-discrimination law violated religious freedom by forcing them to participate?
Gay marriage supporters say yes to the first question, arguing this is the way it should be. And to the second question, conservative religious people say, yes, they must be protected from being coerced to participate in a gay wedding that violates their conscience. Subsequent to the brouhaha that erupted, Indiana revised the law. It now appears that what began as an RFRA is morphing into a law forbidding discrimination against gays — something Indiana has never had.
The end result may well be almost the opposite of what Indiana’s RFRA supporters originally intended.
It’s worth noting that New Mexico has an RFRA and a Human Rights Act that protects gay people. When a photographer there tried to use RFRA to refuse service at a gay commitment ceremony, she lost. The government showed successfully in court that there existed a compelling interest for the state’s anti-discrimination protections. That case has a lot to do with why Arizona, Arkansas and Indiana have now passed their own RFRAs.
Supporters in those states hope their RFRAs will be tougher than New Mexico’s. But be clear, RFRA laws do not give people the right to discriminate against gays. Rather, they say in part that if someone violates an anti-discrimination law on religious grounds, in a court proceeding the burden of proof will fall on the government to show a compelling interest for why the law should trump religious freedom.
And here’s the kicker: No religious claimant has ever won a case under any state RFRA.
RFRAs still have symbolic value to the extent that they say to the community: We should avoid forcing people to participate in things that violate their deeply held religious views. I hope the gay community can appreciate that. On the other side, I hope conservative religious folk can appreciate the value of anti-discrimination laws that protect gay people. Religious freedom and anti-discrimination are both highly valued public goods with long histories in this country. To keep them in balance, both sides are going to have to compromise.
Here’s a suggestion, not for a law but for living together in a civil society in Central Texas. Conservative religious people should not discriminate against gay people unless absolutely necessary to avoid participating in something that violates religious conscience. And gay people should not attempt to require conservative religious people to participate in something the religious person opposes on deeply held religious grounds.
Barry Hankins is professor of history and graduate program director in the history department at Baylor University, as well as a resident scholar with the Institute for Studies of Religion (ISR). He has written extensively on religion in American culture. He and colleague Thomas Kidd’s new book “Baptists in America” will be released next month by Oxford University Press.