Indiana’s Religious Freedom Law Doesn’t Go Far Enough

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Fri, Apr 3 - 9:00 am EST | 4 years ago by
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Everybody hates Indiana. While 19 states and the federal government already had Religious Freedom Restoration Acts (RFRAs) before Indiana passed its own earlier this month, a 20th is apparently more than the self-appointed enforcers of tolerance can stomach. They’ve unleashed a torrent of vitriol, invective, and unhinged abuse at the Hoosier State and everyone in it whether or not they were involved in the law’s passage.

Elected Democrats, celebrities, liberal activists, and even CEOs have all jumped on the bandwagon to denounce not only Indiana’s political leaders, but also local businesses that they just know are waiting with bated breath to begin discriminating against homosexuals, the left’s new favorite victim group.

The Democrat Governor of Connecticut, a state with its own RFRA, has said he will prohibit reimbursements for state employee travel to Indiana. The White House has also weighed in, even though Obama voted for an RFRA while in the Illinois state senate.

It’s not just opportunistic politicians, though. The governing body of collegiate athletics, the NCAA, expressed that it was “especially concerned” about the law’s impact on athletes and staff at the upcoming Final Four. But given the general cluelessness with which they lord over college athletics, it’s little surprise that the public policy experts at the NCAA failed to notice the law won’t even take effect until July, much less have any negative impact on its “[deep commitment] to providing an inclusive environment.”

Tim Cook, the openly gay CEO of Apple, which does business in homosexual-beheading Saudi Arabia, whined that there was “something very dangerous happening” because the RFRA “would allow people to discriminate against their neighbors.”

If only it were so! That would be a sound exercise of the basic American principles of self-determination and voluntary exchange. But the truth is Indiana’s RFRA does little of the sort.

Like the first RFRA, passed in 1993 with broad bipartisan support and signed by President Clinton, Indiana’s law says that government may not “substantially burden a person’s exercise of religion” unless it can show that its imposition is “the least restrictive means” of serving “a compelling government interest.”

The law came after a 1990 case in which members of the Native American Church were fired from their jobs as drug counselors and denied unemployment benefits because they participated in a ritual that involved consumption of peyote, which contains a psychedelic. When the courts said the federal statute could not be applied to state or local governments, states followed suit with their own versions. They have historically been supported by the ACLU and other liberal groups out of recognition that broad legislation often fails to even consider, much less accommodate, religious minorities like the aforementioned Native Americans or the Amish.

Where they cry foul over Indiana’s law is the decision to include judicial or administrative proceedings where the government is not a party, such as discrimination cases between private parties. It’s valid to highlight the minor difference, though even some courts had already interpreted the federal law in the same fashion, but it doesn’t justify their fears.

Courts have proven rather reluctant to allow religious freedom exemptions to anything, much less anti-discrimination laws, and even when they are so inclined it applies only to a very small set of situations. For instance, while Christians could argue that being forced to participate in or materially support a same-sex marriage ceremony violates their deeply held religious beliefs, they couldn’t simply decline service across the board based on sexual orientation.

In sum, the liberal outcry, boycott threats, and general piling-on is both hypocritical – Tim Cook is using his market power at Apple to not do business with entities he finds morally repugnant in order to overturn a law allowing others to not do business with those they find morally repugnant – and completely out of proportion with the actual impact of the law.

But not surprisingly, the hysterical backlash was enough to get Indiana Governor Mike Pence to respond by signing a “fix” Thursday that basically said, ‘no, really, we’re not discriminating!’ The law now clearly says it is not a defense in anti-discrimination cases.

So no big blow for freedom after all.

Conservatives really have no one to blame for this calamity but themselves. They’ve hemmed and hawed about the intent of the law, pretending they never aimed to protect businesses that object to participating in gay ceremonies when everyone knew that was a significant political motivation.

Instead of hiding behind the fig leaf of religious freedom in the first place, which is unlikely to provide any real benefit anyway, they should just take the more principled position that government has no real authority to prohibit private discrimination in the first place.

After all, why should only the religious get to act on their deeply held beliefs?

To be fair, it’s understandable why conservatives wish to avoid challenging anti-discrimination law. When Rand Paul dared to suggest during his Senate campaign that Title II of the Civil Rights Act, which prohibited private discrimination, overreached and violated private property rights, the left went bonkers. He said he would have supported the overall law anyway as the good parts – such as prohibiting government discrimination like Jim Crow laws – far outweighed the bad, but that afforded him little respite from the attacks.

It’s at least debatable whether a private prohibition to discrimination was necessary to achieve the goals of the Civil Rights Act. Prior to its passage, businesses were not really free to oppose Jim Crow, as both other private groups and even government actors engaged in a terror campaign against those who served blacks. But every rule can have an exception.

Likewise, in cases where there is a single service provider, or where all providers are discriminating in similar fashion, intervention may be necessary. But no one seriously believes that is likely to be the case today. Gay couples suing bakers and florists for refusing to service their ceremonies have had no trouble finding providers elsewhere. The burden on them is marginal at best, while the burden on those forced to engage in commerce against their will is significant. And there is clearly no shortage of companies tripping over themselves to demonstrate their tolerance, primarily because they perceive it to be good business. So why bring the government into it?

The left is maniacal in defense of anti-discrimination laws for more than their obvious love of identity politics. They recognize that the foundation of anti-discrimination law – namely, public accommodations – is a bedrock of expansive and interventionist government.

Before government could prohibit private discrimination – an exercise of the freedom to choose with whom we do or do not associate or enter into contracts with – the government first had to concoct authority to intervene. They found it in the form of “public accommodations.”

Essentially, the government arbitrarily decided that the mere act of opening a business to the public made it a “public accommodation,” and therefore made it the government’s job to determine who it served and how. It’s an absurdity justified under neither rights-based nor Constitutional analysis, and exists largely because a large portion of the electorate, and an even larger share of politicians, believe all means are justified in pursuit of a worthy end.

Supporters of laws prohibiting private discrimination and today’s critics of Indiana have difficulty separating their own personal moral views from the policy equation. They view those who oppose gay marriage, as they did the racists of the civil rights era before them, as not only bigots, but as evil incarnate. So they are perfectly fine with running roughshod over their rights. Evil people don’t deserve rights.

To take the emotion out of it, let’s reverse the sympathetic parties. Would they similarly argue a black baker must provide a cake for a KKK ritual? Or how about a gay florist asked to provide arrangements for a celebration at the National Organization for Marriage? The answer should be an obvious no, and in a world where government did not interfere in private transactions, such individuals would be free to follow their own moral compasses. And they shouldn’t have to point to a religious objection in order to do so.

But we don’t live in that world. We live in a world where many simply cannot distinguish between the reprehensible and the impermissible. That’s unfortunate, because as we see with the question over Indiana’s RFRA, it creates social conflict rather than alleviating it. True tolerance requires respecting the rights of others to act on motivations that we don’t necessarily share, and may even find repulsive.

Brian Garst is a political scientist, commentator, and advocate for free markets and individual liberty. He also blogs at and you can find him on Twitter @BrianGarst.

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  • Bordeaux Vixen

    morally repugnant things should not be legal.

    • Steven Schwartz

      I have to somewhat disagree — because I am at heart a believer in many liberties, such as freedom of speech, that contain within them things that many people find “morally repugnant”. I am also a member of too many minority groups to feel comfortable handing over that level of power/judgment to a majority who might decide that thing X is “morally repugnant” and therefore should not be legal.

      it’s possible that we can come up with a definition of morally repugnant we’d all agree on — but I somehow doubt it.

    • Bordeaux Vixen

      Think global, act local! we have to start small in large scale efforts such as culture change.

    • Brian Garst

      I find that attitude morally repugnant.

      Ironically, it’s also the same argument made by those who oppose same-sex marriage.

    • CavalierX

      “‘morally repugnant things should not be legal”

      Who decides what’s morally repugnant? Repugnant to whom? To the average Leftist, everything I find morally repugnant should be at least permissible, if not mandatory.

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