Unless you live in a cave, by now you know that Indiana passed a law last week that allows businesses to discriminate against gays. The sound bites from the news are that bakeries won’t be obligated to sell wedding cakes, and florists won’t have to sell flowers to gay couples getting married.
Former NBA great Charles Barkley, Angie’s List, the NCAA and others have criticized the law for promoting discrimination, but Indiana Gov. Mike Pence stated Sunday there was much “misinformation and misunderstanding” surrounding the law. He does not see the law as promoting discrimination; instead, it’s all about protecting religious freedom. But why did he decline to answer, when asked, if the law permits business owners to discriminate against gays? (Note to the governor: dodging questions does not promote credibility.)
Which is it—discrimination against gays or the protection of religious freedom? To answer that question, let’s look at the law.
The Religious Freedom Restoration Act is remarkably brief—just 11 paragraphs and perhaps a page and a half long, single spaced. Paragraph 8 is the operative section and reads as follows:
(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.
The way the law is drafted, Gov. Pence can say with a straight face (sort of) that the law is not about discrimination. The law says nothing about gays or commerce or excluding gays in commerce.
The law is a little more subtle. It precludes government from taking legal action against someone who professes that his actions are based on the “exercise of religion.” In and of itself, limiting government action hardly seems objectionable, but here’s the rub: the law probably can be used to preclude a gay person from suing for discrimination if the discrimination is based on religious beliefs.
What’s the connection between the exercise of religion and refusing to conduct business with a gay person? To say that the law protects religious freedom suggests that religious freedom is under attack. Where’s the attack?
Let’s explore the sound bite we’ve heard on the news about the bakery and the gay wedding. Based on the “exercise of religion,” the hypothetical baker says he won’t sell to a gay man. What aspect of the baker’s religious freedom is threatened? He’s not being asked to condone or participate in the gay wedding. He’s not being asked to engage in gay sex. He’s being asked to sell a cake—that’s it.
If the baker refuses to sell the cake, is he improving his relationship with God? Does he promote some greater good we typically associate with religion, or does the law give him the right to make a statement about and to insulate himself from others he sees as different?
On the other hand, if the baker sells the cake, how has his religious freedom or relationship with God been threatened?
I was taken back by a photo of the bill signing ceremony. Flanking Gov. Pence on both sides are several monks and nuns. (Disclosure: I’m a cradle Catholic.) I assume these men and women are supporters of the law. How had their religious freedom been threatened?
The words “exercise of religion” have now become magic words for Hoosiers that protect divisive conduct. A lot of things get done in the name of religion that have nothing to do with it.
Jack D’Aurora writes for considerthisbyjd.com
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