Indiana Governor Mike Pence and Arkansas Governor Asa Hutchinson have reacted to the outcry over their states’ new Religious Freedom Restoration Acts (RFRAs) by promising a “fix” – although it’s still unclear exactly what amendments they will propose. The governors can accomplish the goals behind the laws while undermining the exaggerated objections of potential boycotters with two simple fixes:
1) The RFRAs should clarify that they do not change the status quo regarding sexual orientation and employment in Indiana and Arkansas. The lack of statewide non-discrimination laws would continue for the time being, but RFRA lawsuits could not challenge laws protecting gays in hiring and firing in local jurisdictions like Indianapolis and Little Rock. That should address the claims that the law will authorize discrimination against gays in employment.
2) The RFRAs should delineate very specifically the protections for people and businesses asked to be vendors for same-sex weddings. Each state may have different details, worked out by their legislatures, but clarity is essential.
As prominent blogger and UCLA law professor Eugene Volokh explained to me, the RFRAs are controversial right now because such laws “can’t give either side strong assurance what would be the result” in any particular a claim that someone’s exercise of religion has been substantially burdened. “One side is afraid there will be too many exemptions, and the other fears there won’t be enough exemptions.”
But, he said, “instead of the flexible, relatively unpredictable standards set forth by a RFRA, you could set forth specific rules about what kind of discrimination is allowed and what kind is not” – although, he said, “the devil is in the details.”
Unfortunately, Gov. Pence has hinted that he might support an amendment to the Indiana RFRA barring lawsuits from wedding vendors. That would be surrendering to the false “you’re discriminating against gays” argument LGBT activists have been pushing.
I know of no traditionally religious wedding vendor interested in discriminating on the basis of sexual orientation. If someone wants to purchase goods or services for a straight wedding, they will take the business no matter whether the person paying for the photography or the cake is gay or straight. And the vendors will refuse to participate in a gay wedding even if the potential flower-buyer has 100 percent heterosexual credentials. The vendors in question are refusing to endorse with their actions the message of the wedding, not discriminating against the sexual orientation of the customer. A chrysanthemum cannot have a sexual orientation.
While relatively few Americans promote discrimination against gays in hiring and firing, many more have sympathy for traditionally religious people who don’t want to be corralled into supporting a ceremony that at least 40 percent of Americans don’t believe in.