The articles are making the rounds on social media: From the Washington Post on March 27, “19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting.” From the Independent Journal Review (the Right’s Upworthy, according to Buzzfeed) on March 29, “21 Problems with the National Outcry About Indiana’s ‘Religious Freedom’ Law on One Map.” Also from the Washington Post on March 1, “31 states have heightened religious freedom protections.”
Aside from the shifting numbers, all say essentially the same thing: The federal government and many states afford heightened protection of religious freedoms (12 through court rulings and 20 through state Religious Freedom Restoration Acts). So what’s the big deal with Indiana and Arkansas following suit?
Or as Gov. Asa Hutchinson said over the weekend, “What company is going to boycott 20 states?”
For one, unlike the federal RFRA or state laws modeled on it, the Indiana law — just like Arkansas’s HB 1228 — expressly allows for a private individual (or, at least in the Arkansas law, an “association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity”) to file a claim under RFRA even when the government isn’t a party to the claim.
This is a crucial point in the debate over how much the Arkansas and Indiana laws actually matter. Do they represent a significant expansion of the federal RFRA and the (older state-level RFRAs) of what an individual can potentially use as a “religious exemption” defense in court? Writing in Slate, a trio of law professors argue that the Indiana language is a reaction to an unsuccessful RFRA claim in New Mexico by a wedding photographer who refused to photograph a same-sex wedding. The New Mexico Supreme Court ruled that its state RFRA did not apply to private parties. The U.S. Supreme Court later declined to hear the case.
This new statutory language is designed to ensure that a wedding photographer in Indiana would be protected if she discriminates against a same-sex couple, unlike the photographer in New Mexico who lost in court. The provision explicitly permits a private party, including a for-profit corporation, to challenge on religious grounds any claim of discrimination brought by another private party, even when the government is not otherwise involved the case. In other words, when Gov. Pence said that his state’s law is just like RFRAs in other states and would not apply to disputes between private parties without government action, he was simply wrong about the law and its effect on future discrimination.
If Gov. Pence and the Indiana legislature are committed to showing that their law is not about discrimination, there is an obvious solution. They could amend the law to make it clear that protecting against discrimination in the commercial marketplace cannot be defeated by claims of religious freedom. If the law is not intended to protect discriminatory actions, it is hard to understand Indiana’s resistance to this proposal.
(Today in a House Committee, Rep. David Whitaker (D-Fayetteville) asked HB 1228’s sponsor, Rep. Bob Ballinger (R-Hindsville), if he would add a non-discrimination amendment to the bill. Ballinger declined and suggested instead that, if a legislator wanted to protect a new class of people, he should file a bill, so it could be considered and debated before the General Assembly. That’s what former House Majority Leader John Burris suggested in a column for Talk Business today.That sounds fair minded. But, of course, both Ballinger and Burris know that the Arkansas legislature would never go for protecting LGBT people as a new class and likely won’t for years to come.)
Josh Blackman, a constitutional law professor writing in the National Review, would disagree with the reading in the Slate article. He points to a split between federal circuit courts on whether the federal RFRA applies to private parties: Several U.S. Appeals Courts have said the federal RFRA can apply to private parties, while others have said that it cannot. He also points to the same contention by the Obama Justice Department in a 2013 Supreme Court case. Making explicit what four U.S. Appeals Courts and the Justice Department already say is the case shouldn’t be a big deal, Blackman argues.
Even so, the point of the language expressly applying HB 1228 to disputes between private parties is clear: To provide added ammunition in a court case over someone claiming a religious exemption. And we all know what sort of religious exemptions the law was crafted to address, despite claims Ballinger that he was motivated to run the bill to protect religious beliefs, not to promote discrimination.
Even if we take Ballinger at his word and don’t believe that the “private parties” language is meaningful, the reason the legislation in Arkansas and Indiana is getting so much attention is because of timing. The federal RFRA and most of the state RFRAs were passed before the possibility of same-sex marriage being the law of the land was even on the horizon.
From the Washington Post, which offers a handy chart marking the passage of state RFRA laws and the public opinion polling around same-sex marriage.
In 2011, support for same-sex marriage passed 50 percent in Gallup polling, the same year that New York’s legislature passed a law allowing marriage in that state. New York was still at the front end of the wave of states approving gay marriage; to that point, the trend had mostly been the opposite. When the federal government passed the Religious Freedom Restoration Act in 1993, a bill that made the same accommodations that are seen in Indiana’s bill, a number of states echoed it. By 2003, 12 of the 19 states to which Pence referred had RFRA-like bills on the books. By the time the Supreme Court weighed in on two key gay marriage questions in June 2013, the total was 18 — only Mississippi had yet to pass its similar law.
In the wake of the Supreme Court’s decisions on same-sex marriage, with nationwide legalization almost certainly coming in the not-too-distant future, laws that might have once been intended to fight injustice now give the appearance of enabling it. If Arkansas truly wants to be a welcoming place for all, as Gov. Hutchinson has suggested, appearances matter.