Wednesday, April 1, 2015

What the Indiana religious freedom law really means

The two have been on a collision course for years. It was only a matter of time before they crashed headlong into one another. Gay rights and religious rights. Which would win? Religious rights are constitutionally fundamental. Your right to marry isn’t. That’s where the Religious Freedom Restoration Act (RFRA) becomes so controversial.

Bill Clinton signing the RFRA in 1993
Indiana isn’t the first state to enact such a law by a long shot. In fact, there’s a federal Religious Freedom Restoration Act which was introduced by then-Congressman Chuck Schumer (D-NY), passed unanimously by the House and almost unanimously by the Senate with just three dissenting votes. President Clinton signed the act into law in November of 1993. What sparked this law was the infringement on the religious rights of American Indians to use certain land deemed sacred and the use of peyote in religious rituals.

The law was intended to apply to the federal government as well as state and local governments but in 1997 the Supreme Court determined that Congress had overstepped its boundaries in regards to the states. The court ruled that the RFRA passed by Congress could only apply to federal law. That sparked a flurry of state action to replicate the law on the state level.

To date, there are 21 states that have passed their own versions of RFRA, Indiana being the latest. So, why is Indiana’s so controversial. Because it was in response to gay marriage rulings and the now-famous Hobby Lobby case. In Burwell v. Hobby Lobby, the Supreme Court struck down the abortion pill mandate in Obamacare. The Indiana RFRA does not give business carte blanche to discriminate against gays. All the Indiana law says is that the religious rights of corporations and individuals can be limited but only by the “least restrictive means of furthering a compelling government interest.” 

In other words, if the government wants to compel a business not to discriminate against gays then it must take into consideration the religious objections of the business or individual. That doesn’t necessarily mean the courts will rule in favor of the business. For example, it could be argued that baking a cake for a gay wedding doesn’t violate the religious rights of a business because they aren’t taking a direct role in the wedding. However, it might be argued that a photographer would have a legitimate objection since he or she would have to attend the wedding. Certainly few sane people would argue that a preacher should be compelled to perform a same-sex wedding if he or she has a religious objection.

The Indiana law is just common sense but the backlash has been fast and furious. Everyone from the NCAA to Mr. Sulu from Star Trek have railed on Indiana. Several big-city mayors have prohibited travel to Indiana with city money. The governor of Connecticut issued an executive order banning state-paid travel from his state. The irony is Connecticut is one of the 21 states with its own Religious Freedom Restoration Act and it’s more restrictive than Indiana’s!

When the RFRA was about Indians smoking peyote everyone was on board. Now that it’s being used by Christians with a legitimate biblical objection to gay marriage, people are coming unhinged. Honestly, I don’t like seeing anyone being denied service. However, if there’s a compelling religious objection then that should be taken into consideration. The preacher being forced to perform a same-sex marriage is the prime example.

It was only a matter of time before gay rights crashed into religious rights. No matter which side you’re on, it’s been a train wreck.

Phil Valentine is the host of the award-winning, nationally syndicated talk radio show, The Phil Valentine Show.

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