Indiana’s new religious-liberty law, of interest to those following Senate Bill 129 here in Georgia, is generating criticism and outright anger from those who see it as allowing discrimination toward gays and lesbians. Prominent among the critics are celebrities, who seem as eager as ever to say what they’re “supposed to” say without knowing the facts.
That goes not just for celebrities lashing out at the Hoosier State on social media, but even those penning op-eds about the law. Consider what actor George Takei, who has called for a boycott of the entire state of Indiana, wrote for MSNBC.com:
“My husband Brad and I like to spend our holidays in the White Mountains of Arizona. There’s a small town called Show Low where we’ve passed many a merry Christmas. We’ve been regulars at the July 4th parades there, entertained friends and family over the years, and consider it our home away from home. But last year, it was very nearly going to be impossible for us to travel back to Arizona in good conscience. You see, at that time, Arizona was on the verge of passing a bill that would have made us feel entirely unwelcome.”
The piece goes on for almost 800 more words, but you can stop right there if you know the first thing about the law in Arizona, Indiana and much of the rest of this country.
Yes, Arizona last year passed a much more expansive law that was vetoed by Gov. Jan Brewer. But since 1999, Arizona has had a law on the books that is nearly identical to the one in Indiana, which Takei would have us boycott. That 1999 Arizona law reads, in pertinent part:
“A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
“B. Except as provided in subsection C, government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
“C. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both:
“1. In furtherance of a compelling governmental interest.
“2. The least restrictive means of furthering that compelling governmental interest.
“D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.”
If you don’t see the words “license to discriminate” in there, put down the megaphone and read what the corresponding portion of Indiana’s new law says:
“Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.
“(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
“(1) is in furtherance of a compelling governmental interest; and
“(2) is the least restrictive means of furthering that compelling governmental interest.
“Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.”
There are two substantive differences between these texts. The first is the phrase “… likely to be substantially burdened…” which allows a plaintiff to try to pre-empt the burden. The other is the phrase “regardless of whether the state or any other governmental entity is a party to the proceeding,” which allows the law to be used as a defense in a matter between private parties.
This second difference doesn’t necessarily matter from the standpoint of discrimination: First, a private party suing another for discrimination would be relying on the same law that a governmental entity would sue to enforce. So in both cases, the court ruling would hinge on whether banning discrimination was truly the least restrictive way to achieve a compelling government interest. Second, as a practical matter, the high-profile discrimination cases involving state religious-freedom acts, or RFRAs, have been pursued by government agencies anyway.
And, for the umpteenth time: These claims of religious-freedom as a defense for discrimination have failed in court.
The Arizona and Indiana laws are similar in other respects. In both states, “person” can include a private corporation. In both states, free exercise of religion is covered “whether or not the exercise is compulsory or central to a larger system of religious belief.” In both states, a religious person who wins the case can obtain “appropriate relief” from the government, including attorney’s fees.
If Takei believes Indiana will now be hostile toward him and other gay Americans, he ought to feel similarly threatened by Arizona’s law. But by his own admission, he felt perfectly comfortable in this “home away from home” for years after Arizona’s law was passed in 1999. So why doesn’t his personal experience in Arizona inform his opinion of Indiana’s new law?
In his defense, Takei isn’t alone in ignoring how similar Indiana’s law — like Georgia’s SB 129 — is to laws that have been on the books for more than a decade without generating protests and boycotts. Connecticut Gov. Daniel Malloy announced a ban on official state travel to Indiana, apparently forgetting his state has its own RFRA that arguably offers even stronger protection to people of faith.
Some of those who condemn the new law claim it’s because of the “context” in which this legislation is proposed — meaning, shortly before the Supreme Court is expected to declare same-sex marriage legal across the land. That’s a peculiar argument, if you think about it: At a time when courts are in virtual lockstep ruling in favor of gay rights, and when the highest court in the land is expected to issue (another) landmark ruling in favor of gay rights, are we really expected to believe courts will turn around and allow RFRAs act as a “license to discriminate” against gay Americans?
Maybe that isn’t really what these critics would have you believe. Maybe they just want you to believe what they say matters more than what the laws and the courts say.