This past week Indiana adopted a state-level version of the federal Religious Freedom Restoration Act (RFRA). This law imposes a higher standard of review when the state or a local government passes laws that interfere with the free exercise of religion. However, the law has unfairly been characterized as legislation that would authorize, or even encourage, unjust discrimination against homosexuals.
Before discussing Indiana’s RFRA law, it is important to briefly discuss the history behind the legislation. In 1993, Congress passed (with a unanimous vote in the House and 97-3 in the Senate) and President Clinton signed the federal RFRA. The law was enacted in response to a U.S. Supreme Court decision which lowered the standard under which religious liberty cases were reviewed. The law was originally intended to apply to state actions as well as federal actions. Yet, the portion of the law that applied to state actions was struck down by the U.S. Supreme Court because it exceeded Congress’ authority.
In effect, this meant that actions by the federal government were held to a higher standard than actions taken by state governments. This created a problem since laws passed by state governments are far more likely to impact the daily lives of citizens. To address this problem, states began to pass their own versions of the RFRA law. In fact, President Obama voted in favor of Illinois’ version of RFRA in 1998 when he was a state senator.
RFRA laws have been utilized by a variety of groups seeking protection from government interference with their religious beliefs. The federal RFRA law was passed in response to a U.S. Supreme Court decision regarding Native Americans who used peyote as part of their religion. Some examples of cases that followed include a Native American’s use of eagle feathers, the beard length of an incarcerated Muslim, and an Orthodox Jewish prisoner’s request that his prison provide kosher food options. One of the most recent cases was Burwell v. Hobby Lobby Stores Inc., which involved an effort by the federal government to force Hobby Lobby to provide abortifacient insurance coverage to its employees.
In some ways, it is surprising that the debate in Indiana has focused on the potential for unjust discrimination against homosexuals. The opponents of RFRA have been unable to cite a single instance in which said laws were used to facilitate discrimination against homosexuals. If RFRA was simply an effort to facilitate such discrimination, there would be some evidence at this time. RFRA laws have been in existence since the early 1990’s and over 19 states have adopted versions of the law. Another 13 states have RFRA like protections provided by state court decisions. Thus, a total of 31 states have heightened religious freedom protections similar to Indiana’s RFRA. Close to home, Kentucky adopted its RFRA law in 2013. To date, there have been no reports of mass discrimination arising from Kentucky’s RFRA law.
Therefore, the question is how RFRA laws, once supported by President Obama and President Clinton, have become so controversial. Part of the answer is the proliferation of Sexual Orientation and Gender Identity laws (“SOGI”). These laws elevate sexual orientation and gender identity to the status of being a protected class akin to race and sex. SOGI laws prohibit discrimination in facilities or accommodations open to the public. Some states have adopted statewide SOGI laws while in other instances local governments have adopted them. For example, Lexington and Louisville have passed SOGI laws.
A fact that is barely mentioned in the current debate is that Indiana does not have a statewide SOGI law. As a result, in most of the state, individuals and businesses could in theory refuse to serve homosexual customers without fear of government action. Thus, Indiana’s RFRA law does not impact the treatment of homosexuals one way or the other in most of the state. Once again, there is no evidence that the citizens of Indiana are inclined to engage in unjust discrimination despite the fact that there is no government law preventing them from doing so.
The issue of concern for many is what happens when a RFRA law collides with local SOGI laws. Would a RFRA law allow a business owner to refuse service to a homosexual customer? Under what circumstances would such discrimination be tolerated?
The Catechism of the Catholic Church states that “[homosexuals] must be accepted with respect, compassion, and sensitivity” and “[e]very sign of unjust discrimination in their regard should be avoided.” Kentucky’s Bishops have specifically reaffirmed the fundamental principle that each and every person is equal in dignity and possesses a sacred nature, being created in the image and likeness of God. This dignity is possessed by all persons by virtue of their existence and is not diminished by one’s personal characteristics, choices, preferences, or actions.
On the other hand, the Church has expressed concerns regarding an inadequate distinction between sexual inclination and behavior in many of the SOGI laws which seek to address discrimination against homosexuals. In some instances, efforts to combat unjust discrimination against homosexuals have given rise to others forms of injustice. For example; SOGI laws have been used by some to punish individuals and businesses who do not wish to participate in wedding ceremonies, often times religious in nature, which violate their deeply held beliefs.
RFRA laws help to strike a balance between protecting religious liberty and addressing claims of unjust discrimination. They ensure that that the government has a “compelling interest” before forcing someone to violate their religious beliefs. In effect, this means that the government cannot sanction laws and actions which punish those who hold views that others simply find objectionable. Instead, the state or local government must prove that it is advancing an important government interest. Not only is this approach in accord with the Catholic view of religious liberty, but it also reflects a deeply American value. Thomas Jefferson summed this principle up well by writing that “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.”
This should be a value that all Americans cherish. It is striking that most of the debates seem to take for granted that those individuals living a homosexual lifestyle do not value religious liberty. Yet, over 50% of gays and lesbians describe themselves as being religiously affiliated. Hence, it should not be insinuated that only those adhering to a traditional view of sexuality value the liberty to act according to their deeply held beliefs.
Therefore, those following the debate in Indiana should be aware that the laws at issue need to be viewed in a larger context. Indiana’s RFRA was not created out of a desire to discriminate. Instead, it reflects a continuing effort in our country to strike a balance which allows all citizens to practice their faith without unnecessary government interference.