What Do These ‘Controversial Religious Freedom’ Bills Actually Say?

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W. James Antle III Managing Editor
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Another state is debating what the headlines frequently call “controversial religious freedom legislation.”

You might wonder when religious freedom became “controversial.” Welcome to Barack Obama’s America.

One reason these bills are “controversial” is that they are often described in the media as permitting religious people who own businesses to refuse service to gay customers. When this fight came to a head in Arizona, CNN blared “Arizona Gov. Jan Brewer vetoes controversial anti-gay bill.”

Except the text of the bill in question contains no references to homosexuality, gay people or same-sex marriage. Neither does the bill currently under discussion in Indiana.

In fact, these bills are substantially modeled on the federal Religious Freedom Restoration Act of 1993, which did not lead to the widespread denial of service to gay customers, was passed by a Democratic-controlled Congress and signed into law by Democratic President Bill Clinton and was boosted primarily by Chuck Schumer and Ted Kennedy.

Why did they enact this law? Because during the 1980s, two Oregon drug counselors were fired from their jobs for the sacramental use of peyote and denied unemployment benefits by the state. They argued their religious liberty was violated. The Supreme Court, in a 1990 opinion written by Antonin Scalia, disagreed.

So all the fuss about religious zealots imposing their theology on gays and other unwilling third parties actually originated in a controversy where Ted Kennedy sided against Antonin Scalia.

All the Religious Freedom Restoration Act said was that if a “generally applicable federal law” imposed a “substantial burden” on someone’s free exercise of religion, judges would have to decide whether that burden served a “compelling government interest” and used the “least restrictive means” possible.

That’s essentially all these state bills require too. Yet in Indiana, protestors chanted, “Reject RFRA! Reject RFRA!”

What changed? For more than twenty years, the federal RFRA wasn’t terribly controversial and the critics it did have were as likely to be conservative as liberal.

But the law was cited in the case against the Obamacare contraceptive mandate. Even if there is a “compelling government interest” in expanding access to contraception, it can hardly be argued that forcing Hobby Lobby or the Little Sisters of the Poor to pay for it was the least “restrictive means” of furthering that interest.

Then there were florists, bakers and photographers who were punished by various state government entities for refusing to service same-sex weddings on religious grounds. The Supreme Court had ruled that the national RFRA only applied to the federal government, not the states. So the law was no remedy for the grandmother at risk of losing her home and life savings when she wouldn’t make floral arrangements for such a ceremony.

Consequently, social conservatives began pushing for state-level RFRAs. That is the entire basis for the contention that these are “anti-gay” laws. But at most, they would give the florist, the photographer and the baker a claim in court. There would be no guarantee they’d win.

Most of the state bills also explicitly say that these religious protections also extend to corporations. Such legislation does not say that religious beliefs are a trump card over the law. The federal version did not flood the courts with claims from people trying to get out of complying with the law by claiming to follow obscure doctrines.

The liberal columnist Harold Meyerson speculated that once the issue moved from peyote to contraception, Scalia might rule differently than in 1990 because “he’s being confronted with a case where the religious beliefs in question may be closer to his own.” Indeed, Scalia did vote with the majority in the Hobby Lobby case.

It seems more accurate, however, to say that liberals have changed their views on religious freedom now that the law is being used to protect conservative Christians rather than peyote users.

And for all their talk of a new gay Jim Crow, deep down liberals know that in a competitive market there’s no plausible way to argue that taking grandma’s life savings is the “least restrictive means” of ensuring gay couples can access floral arrangements for their ceremonies.

Yet the Indianapolis Star reports “many who opposed the same-sex marriage ban last year re-united to oppose this year’s religious freedom legislation.”

Maybe next they’ll picket Ted Kennedy’s grave.

W. James Antle III is managing editor of The Daily Caller and author of the book Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter.