The problem, governor, is not just with the wording of your state’s law — but with our history.
Indiana Gov. Mike Pence defends his state’s new “religious freedom restoration” law, saying that “this bill is not about discrimination,” despite critics’ claims that it will be used for just that purpose — particularly against LGBT citizens.
The language of the new law — signed by Pence last week — says that government can’t “substantially burden a person’s exercise of religion” without a “compelling governmental interest” and even then can act only in the “least restrictive means.”
Pence says it mimics the federal Religious Freedom Restoration Act, which President Bill Clinton signed into law in 1993. The courts held later that Congress could not similarly bind states, and 20 states — with one more pending this week in Arkansas — now have their own statutes.
Opponents say the Indiana version goes beyond the national RFRA, and that its purpose is clear because of the motives of many who supported it. The Hoosier law was backed by a coalition of conservative groups that also oppose same-sex marriage and some who have supported business owners who don’t wish to provide their services to gay couples planning weddings.
And that support — combined with a national history replete with incidents and at times legalized discrimination over race, gender, creed and sexual orientation — is among the reasons that about 1,000 protesters gathered over the weekend on the Indiana Statehouse steps, and that state and national business leaders are discussing limiting their operations in the state or pulling out entirely.
The new Indiana law specifically provides a legal defense option for business entities as well as individuals. Other differences from the federal law: It can be invoked by someone claiming a “likely” burden on the exercise of their faith, not just after it has been burdened. And it explicitly also applies to lawsuits not involving the government.
Looming over the entire dispute is the open question of how far the courts will go in applying the new law. Will it just protect those involved in denying wedding services? What about hotel or other public accommodations? And, as the most vocal assert, even seating in restaurants?
Supporters of the law say “no” to most if not all of those fears, saying actual cases will be limited in scope and number. They also cite examples where religious liberty has collided with government regulations, usually in non-gay instances such as a Nebraska woman who died before state officials agreed to pay for an out-of-state liver transplant to replace an in-state operation that required a blood transfusion — which as a Jehovah’s Witness, she could not accept.
But those who feel targeted say it could mean — in a terrible echo of our recent past — signs in some storefronts saying they don’t serve LGBT customers, recalling those which at one time proclaimed “Whites Only” or “No Dogs or Irish Allowed.”
Too harsh an image? Unfairly linking an issue of religious faith to past discriminatory actions and laws?
Segregation at times gained legitimacy under the cloak of religion proclamations of the past that said social interaction by blacks and whites, or interracial marriages, would lead to the end of divinely inspired racial separation.
In a 2012 article for the Wake Forest Law Review, author Michael Kent Curtis documents a number of instances in which religious belief was the bulwark for a legal position in favor of discrimination. Curtis wrote that “the trial judge who upheld Virginia’s anti-miscegenation statute in the 1967 case of Loving v. Virginia cited the fact that God had put the races on separate continents as proof ‘that he did not intend for the races to mix’.” Curtis also notes an 1867 Pennsylvania Supreme Court decision upholding segregation on railroads that cites divine intention to separate the races, a ruling he said was later used in multiple states — including Indiana — to uphold laws against interracial marriage or support segregation of transportation and higher education.
The law review article also notes that in the 1940s, “Mississippi Senator Theodore G. Bilbo explained that ‘miscegenation and amalgamation are sins of man in direct defiance with the will of God …’” and that a professor at a Mississippi religious institution proclaimed that “[O]ur Southern segregation way is the Christian way … [God] was the original segregationist.”
Supporters of the state laws do have some history on their side as well, noting that there’s no evidence over two decades that the federal RFRA has boosted anti-gay discrimination and that courts have often supported government regulations in in RFRA cases ranging from medical procedures to zoning laws.
Still, it’s one thing to consider the Indiana law and others like it just on the basis of wording, and quite another to add the perspective of our nation’s history— which gives rise to questions about both the law’s intent and its ultimate use.