I’ve been thinking about writing an article on the subject of Indiana’s controversial new Religious Freedom Restoration Act (RFRA) for the past several days, but I wasn’t quite sure how I felt about this particular situation. Like you, I have been absolutely inundated with Facebook memes, news clips, articles and accusations alleging hate and discrimination. I could not for the life of me understand how a state government could pass a law that would open the door so wide to the possibility of widespread discrimination. Could this actually be happening? Was this real? With the entire country seemingly up in arms over this I had to know more about it. After conducting extensive research I am sad to say that, like you, I was taken in by an overblown, over-dramatized, media sensation. Is this real? Does this law actually promote and or legalize discrimination against gays? The truth is no it does not.
I have read the law in its entirety, it’s only a couple pages long. I can say definitively that there is not one bit of language in this law that legalizes any form of discrimination against anyone. Nothing whatsoever. In fact the Indiana law is almost a word for word copy of the existing federal RFRA signed by President Clinton in 1993. There are a few differences but nothing critical. The most glaring differences are that the Indiana law extends the definition of “person” to include businesses and various other for-profit groups, and that it specifically protects against impending religious infringement; meaning if a law gets passed that will harm religious people at some point a suit can be brought even before the harm occurs. These are both meaningless changes and here is why. First, corporate personhood, that is certain rights of people being extended to corporations, was established at the federal and Supreme Court level long ago and is based in the 14th Amendment. So Indiana extending the definition of “person” to include businesses is nothing new. Second, people already have the right to bring suits against “impending” harm. That’s what injunctions do, they prevent actions from being taken that may cause harm before they are actually taken. So again this is nothing new.
The Indiana RFRA is aimed at preventing government intrusion on religious freedom, and as such its language is directed at government actions rather than private actions. There is no language in this bill that relates to interactions between private citizens whatsoever. So the question you may be asking is why Indiana needs this law if there is already a federal RFRA on the books. The reason Indiana, and 18 other states, passed its own RFRA is because of a 1997 Supreme Court (City of Boerne v. Flores) case that held that the federal RFRA was unconstitutional when measured against state laws. So states enacted their own RFRA’s to provide the protection the federal RFRA could not. All told 31 states have increased protections for religious freedom through either legislation or court rulings, so this idea of a law protecting religious freedom is nothing new (there’s a theme here).
So it turns out that all of the drama, all of the anger, all the ranting and raving and threats of boycotts was for nothing. There is nothing inflammatory or extraordinary about this law, in fact there is nothing even really new about this law. It does not sanction, legalize or otherwise promote discrimination. It does not go above and beyond established federal laws. It does not mandate the castration of sea lions or the roundup and execution of pandas, or whatever other utter nonsense people are shouting about. It is, in fact, an entirely ordinary law consistent with several other existing laws that have come before. Yet another example of people jumping onto bandwagons without knowing all the facts. I’ve said it before and I’ll say it again, please, for the love of Pete, conduct your own research before running out to join the crusade.