Friday, April 17, 2015

You Can't Always Get What You Want

By Cthulhu's tentacles!  I didn't think this shameful spectacle could get any worse, and then of course it did.  It's almost certainly not over yet.

I confess, I didn't pay much attention at first to the Religious Freedom Restoration Act as it moved through the Indiana Legislature.  I don't know why; I pay less attention to state politics than to local, national or international politics, and that's not something to be proud of.  But as more and more people began drawing my attention to the bill, and the temperature of the opponents' rhetoric rose, I grudgingly took a look.

First I looked at the text of the bill itself.  I took for granted that "Religious Freedom Restoration Act" was intentionally misleading, a smokescreen like "Defense of Marriage Act" or "Marriage Equality".  People I knew were fuming that it would be a license for discrimination against LGBT people, and I wondered what such a law would look like.  Someone mentioned that there was a Federal RFRA too, passed during the Clinton administration.

As I'd rather suspected, the Indiana bill, like the Federal one, didn't explicitly mention sexual orientation or gay or trans people.  Both versions were weirdly vague, which I thought was worrisome enough.  The gist of the Federal bill, as well as of the Indiana version (I know, I know, but hold your horses -- I'll get to that presently) was that "Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability" and that any burden must be justified as "furtherance of a compelling government interest."  The point of the Federal bill was to protect small, marginal religious sects when their practices ran afoul of majority prejudices and laws.  The best-known example of this was peyote use by the Native American Church, but the RFRA was cited in other contexts too, ranging from conflicts over the renovation of a Roman Catholic church building that had been designated a historical landmark to the infamous 2014 Hobby Lobby case.

In 1997 the US Supreme Court overturned part of the Federal RFRA, "with respect to its applicability to States (but not Federally), stating that Congress had stepped beyond their power of enforcement provided in the Fourteenth Amendment."  Numerous states then passed RFRAs of their own, of which the Indiana version is (so far) the latest.  In some cases, court rulings provided similar protections at the state level.

That the Indiana bill didn't refer explicitly to sexual orientation doesn't tell us anything about its intent, of course; that's why I find its vagueness so worrisome.  What constitutes a "substantial burden" probably is constrained somewhat by case law, what the courts have ruled on the subject in the past.  But that's just what is being debated now: is it a "substantial burden" to require businesses to serve customers whose lives are at some kind of variance with the business owners' religion?  This is likely to be fought in the courts for years to come.

When I pointed this out, asking snarkily how many of the Indiana bill's opponents had actually read it, the reactions (basically "you think you're so smart!") indicated that they hadn't, but OMFG we have to do something right away, because this law will give Bible-thumpers a license to discriminate against LGBT people!

On this point I confess I was slow on the uptake.  It took me a few days of debate before I remembered that Bible-thumpers in Indiana (or anyone else, in fact) already have "a license to discriminate against LGBT people": Indiana's civil rights law doesn't include sexual orientation as a basis on which it is forbidden to discriminate.  Not only that, Indiana localities are not permitted to add anything to the state law's provisions in their own civil rights ordinances.  My liberal city, Bloomington, tried to do so in the 1970s, but that ordinance was overturned.  In the 1990s, West Lafayette and Bloomington tried another approach: they passed ordinances which forbade discrimination based on sexual orientation, but without any provision for enforcement.  The city would attempt to mediate complaints about discrimination, but there could be no penalties.  Those ordinances are still on the books, but they don't constitute any real prohibition of discrimination based on sexual orientation.

Nor is Indiana unique in this regard.  Some people I knew began calling for boycotts of Indiana if the bill passed.  The first lives in Kentucky.  Kentucky already has a Religious Freedom Restoration Act, and does not legally forbid discrimination based on sexual orientation.  The state government of Kentucky is currently fighting against the legalization of same-sex civil marriage there.  So shouldn't he boycott himself first?  Then my liberal law-professor friend said, half-jokingly I guess, that she wasn't sure she should visit her family in Indiana, she didn't want to spend money here.  She lives in Texas, which already has a Religious Freedom Restoration Act, and no legal protection for sexual orientation.  As a law professor who specializes in civil rights law, she surely is aware of this.  (So far she has yet to say anything about the Indiana RFRA that betrays any intelligence at all.)  Before long some random person in Michigan issued the clarion call to boycott Indiana.  While Michigan doesn't have a state RFRA, it does have "RFRA-like protections provided by state court decisions," and permits discrimination based on sexual orientation; it also has a ban on same-sex marriage passed by popular vote ten years ago, but still in force so far. (The Detroit Free Press editorial I just linked to was one of the more sensible things I've read on this issue.)  This map, already out of date but still helpful, shows the thirty-one states that have RFRAs or RFRA-like court decisions.

Same-sex civil marriage is legal in Indiana, by contrast, and it seems that the RFRA was introduced as a sullen riposte to the activist courts that made it so.  (So there, too!)  I wouldn't be at all surprised if Governor Mike Pence, who clearly isn't the sharpest pencil in the box, was unaware that antigay (as well as anti-straight) discrimination was already legal in the state he governs. 

Now, it is true that the Indiana law has some important differences from the federal RFRA, and from other state versions, as discussed here.  They're clearly meant to make it easier for bigots to cite religious freedom to defend discrimination.  Again, however, none of these differences point to sexual orientation.  They are meant to defend all kinds of discrimination, even those that are prohibited by existing civil rights law.  And let me repeat: In Indiana and most other states, there's no need to cite religion as a justification for discriminating against LGBT people, since it is already legal to discriminate against us here.  What I find annoying about most of the Indiana RFRA's critics is that, first, they ignore this elementary fact.  Numerous people quoted Stephen King's line "Indiana's Religious Freedom Restoration Act is gay discrimination, pure and simple. You can frost a dog turd, but it's still a dog turd."  Leaving aside King's evident confusion about terminology (it's antigay discrimination, not "gay discrimination"), the Indiana RFRA is not specifically about gay people.

My second concern is that in the hysteria over this law as a license to discriminate against gay people, its critics are overlooking other forms of discrimination that are at least as relevant in a Republican, heavily conservative-evangelical state.  If a good Christian shopkeeper wants to refuse to serve a woman in a hijab or other Muslim head covering because America's a Christian country so go back where you came from, for example, this bill would provide a cover for that refusal -- at least until the courts overturn it.  Most (all that I've seen, in fact) of the fuss over the Indiana RFRA focuses on antigay discrimination, while ignoring its other implications.  This may be partly because so many LGBT Americans, being Americans, are quite comfortable with anti-Muslim discrimination, racism, sexism, and other areas where faith and the law may clash.  The campaigns for "marriage equality" and against the US military ban on homosexuals involved a lot of reactionary flag-waving and Bible-thumping to assure their fellow citizens that LGBTs can be good Republicans and Moral Majoritarians too.

Which brings me to another flaw in the criticism.  Given the vagueness of Religious Freedom Restoration laws at all levels, their writers' intent is not all that important, but it can still be noticed and discussed.  Given the people who inspired and worked on the Indiana bill and who were present when Pence signed it into law, I don't doubt that enabling antigay discrimination was their intention.  (Though they'd probably be quite happy if it could be used against Muslims, Jews, Wiccans, atheists, and others.)  But the intentions of a law's framers don't determine much.

Take the the Equal Access Act of 1984 (via), passed during the Reagan administration to force public schools to allow students to use their facilities for prayer and Bible-study groups.  In those heady days, when the Christian Right saw Reagan as their Vindicator who would make the whole world bend the knee to Christ as they conceived of him, it's not surprising that the bill's sponsors and supporters dismissed concerns that it could be used by secularists and homosexuals and others they disliked.  But the EEA turned out to be the "single most important tool available"* to the Gay-Straight Alliances that spread across the US in the 1990s.

Returning to the RFRAs: the Federal version was intended to protect minority religious groups, notably Native Americans.  It failed to do so.  First the Supreme Court ruled it unconstitutional as it applied to actions by the states, while sustaining it at the Federal level.  Then it turned out that Native Americans who used peyote in religious rituals were still running afoul of law enforcement, so the law had to be amended in very specific language: "the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation."

The authors of the Indiana RFRA learned from the failures of other state RFRAs. Its provision that government entities need not be involved to make a case for infringement of religious freedom, for example, was evidently inspired by a court's rejection of such a case involving a private business in New Mexico.  The Indiana bill attempts to plug that hole.  Whether the courts will accept this plug will have to be seen.  Again, the critics of the Indiana law ignored such issues until their noses were rubbed in them, and then they still preferred to focus on its nonexistent "license to discriminate against gays" aspect.

Some unexpected and unwelcome invocations of religious freedom have been turning up even before the Indiana RFRA was passed.  Some were meant seriously, others humorously, but they were no less educational for all that.  One example that got a lot of press was the "nearly nine-foot-tall bronzed statue of a Baphomet, a goat-headed idol seated on a throne before two children, which [the Satanic Temple] plans to erect in the Oklahoma Capitol."  I hope that creative interventions like this will proliferate, letting the Christian Right and the American public know just what a Pandora's box the RFRAs will open.  While the intention of the Indiana Religious Freedom Restoration act was certainly bad, the intentions of many of its critics are also suspect as far as I can tell.

Next: the backlash.
*Melinda Miceli, Standing Out, Standing Together: The Social and Political Aspects of Gay-Straight Alliances (Routledge, 2005), page 39.