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Reality check on the Religious Freedom Restoration Act

By Scott Tibbs, April 02, 2015

The Religious Freedom Restoration Act was passed at the federal level by a Democratic Congress and signed into law by President Clinton. A nearly identical law was passed in Illinois a few years later, and state senator Barack Obama voted for it. Yet we are now having a national freak-out because Indiana passed a law that is virtually identical to the ones supported by Clinton and Obama.

The premise behind the law supported by Obama, Clinton and Mike Pence is astonishingly simple. Government cannot force you to do something that violates your religion (even if it is a rule that applies to everyone) unless there is a "compelling state interest" to do so. Then, government needs to demonstrate that the law or regulation is the least burdensome way to accomplish that compelling state interest.

This means that laws against racial discrimination are not in danger, because it meets both the "compelling state interest" test and the least burdensome method test. Despite some Internet trolling, marijuana prohibition is not in danger either. That is because you have something that is either legal to use or not, and so there is no middle ground between the two.

What the state RFRA - like the federal RFRA - does is protect against government regulations that can be burdensome. A church, for example, cannot build in violation of building codes or zoning regulations that apply evenly. But that church would not be forced to provide birth control to its employees if there is a less burdensome way to establish the state's policy goals of covering birth control.

Does this law allow for discrimination against homosexuals? Here is the dirty little secret behind the hysteria over this issue: Sexual preference is not included as a protected class under Indiana's civil rights laws. This means the RFRA literally changes nothing regarding whether discrimination is legal under the Indiana Code. And despite this, you have not seen widespread discrimination against homosexuals in Indiana and you will not see it once RFRA becomes law. The outrage over RFRA cannot even be said to be making a mountain out of a molehill. It is making a mountain over a level plain.

Where the "discrimination" angle comes in is whether government can use a civil rights statute (that, again, does not exist in Indiana) to force a business owner to participate in a homosexual wedding by providing a cake or flowers. That same Christian baker or florist would not turn down that same person coming in to buy a birthday cake or flowers for Mother's Day - and he would be violating both good business sense and Scripture to do so. After all, the Apostle Paul said in 1 Corinthians 5:9-11 that we should not go out of the world.

But providing a general service to someone who you know to be openly, unapologetically and unrepentantly engaged in a sin is very different from endorsing that sin by providing a service to support that sin - whether it be a same-sex wedding or a wedding of a man who has abandoned his wife and children to marry a woman half his age. In order to force someone to do that against his religious convictions, the government would have to prove that there is a compelling state interest at stake and that there is no less burdensome way to accomplish the goal of letting someone buy the product for the wedding the business owner finds objectionable.

In fact, business discriminates every day based on behavior, from "no shirt, no shoes, no service" rules to airlines that will not allow someone wearing an obscene shirt to board an airplane. But this is not and was never about tolerance for militant homosexuals and their supporters. This is about mandatory acceptance. Tolerating the behavior is not enough; you must endorse it, or face punishment by government. That attitude is completely opposed to the freedoms protected by the First Amendment, which is why laws like the RFRA are needed.

So, at the end of the day, this is a very simple law that changes absolutely nothing regarding anti-discrimination law, though it does provide an extra layer of protection by mandating strict scrutiny for claims that a law violates freedom of religion. It is a law that should have been passed fifteen years ago.

I posted a series of links on Facebook last week to blog posts and editorials I have written on freedom of association and why freedom of association must necessarily include the freedom to not associate.