The Battle of Indiana and the Promise of Battles to Come

David French
National Review

David FrenchDavid French is a writer for National Review and National Review Online. A graduate of Harvard Law School, he is former president of the Foundation for Individual Rights in Education, former senior counsel for the American Center for Law and Justice, and has taught at Cornell Law School. He is a columnist for Patheos and is the author or co-author of several books, including most recently the number one New York Times-bestselling Rise of ISIS: A Threat We Can’t Ignore. Mr. French is a major in the United States Army Reserve (IRR). In 2007, he was deployed to Iraq, where he was awarded the Bronze Star.

First, a bit of history. The battle of Indiana began when Indiana’s legislature passed a version of the Religious Freedom Restoration Act (RFRA), an act that provided, simply enough, that any state action that substantially burdens religious exercise is lawful only if it is the least restrictive means of furthering a compelling governmental interest. In other words—as Tim Carney of the Washington Examiner recently tweeted—when you can, you should avoid compelling people to act against their consciences.

This legal standard was common enough. In fact, it’s the same general legal standard in the federal RFRA and in similar RFRAs in 19 other states. There were, however, two differences from the norm. First, the statute explicitly allowed for-profit businesses to assert religious liberty rights (something the Supreme Court allowed Hobby Lobby to do in its challenge, under the federal RFRA, to the Obamacare contraception mandate). Second, the statute allowed a religious individual to utilize RFRA in defense against a lawsuit brought by a private party. In other words, if a person believed that his religious liberty could be substantially burdened by a court order resulting from private litigation, that person could assert that the court order would be lawful only if it met the RFRA test.

Neither provision is particularly groundbreaking. The Supreme Court allowed Hobby Lobby and other closely-held private, for-profit corporations to assert RFRA claims. Additionally, multiple federal circuits provide for the use of federal RFRA as a defense against a private right of action.

Moreover, RFRA and the compelling interest standard more broadly have long existed in American law. The compelling interest standard was not something invented by Congress when it passed RFRA in 1993. RFRA was passed to restore religious liberty to the same level of protection it received prior to the Supreme Court’s controversial decision in Employment Division v. Smith (1990), which rejected decades of precedent to hold essentially that religious liberty claims are inferior to rules of general applicability. Smith caused a bipartisan outcry, and Congress moved quickly to overturn the decision, passing RFRA with overwhelming majorities. President Clinton proudly signed it into law.

Conservatives saw Smith as a threat to the constitutional order, a dangerous derogation of our nation’s “first liberty.” Liberals saw Smith as a threat to smaller, minority religions. The dispute in the case arose over the use of peyote, a hallucinogenic drug, in Native American religious rituals. It’s safe to say that there was no sense at the time that RFRA was a threat to civil liberties or civil rights. Indeed, RFRA was seen as necessary—again, by liberals and conservatives alike—to protect civil rights.

There was good reason for this belief. For decades, the compelling interest standard in religious liberty claims had existed side-by-side with the explosive growth of nondiscrimination laws, and religious liberty claims had never been successfully used to strike down nondiscrimination statutes. In fact, in Newman v. Piggie Park Enterprises (1968), the pre-Smith Supreme Court called a business owner’s argument that he had a free exercise right to deny service to black customers “patently frivolous.”

This comes as no surprise to religious liberty attorneys who actually read the law and know how it operates in real-life litigation. It’s a historical fact that religious liberty claims did not protect or legally enable Jim Crow. The Civil Rights Acts were passed and prospered under the pre-Smith religious liberty regime.

Regardless, the sexual revolution marches on and the Left’s definition of “civil rights” has expanded—not only does it prohibit class-based discrimination in places of public accommodation, it now requires conscription into the revolution itself.

For example, it’s no longer enough for employees to have access to low-cost contraceptives and abortifacients. It’s the Obama administration’s position that employers must provide them free of charge. It’s no longer enough for bakers, florists, and photographers to provide service to everyone, regardless of sexual orientation. They must participate in and facilitate any kind of action or ceremony their customers desire—no matter how offensive to their beliefs—so long as those ceremonies further the ideals of the sexual revolutionaries.

So, when Indiana passed its RFRA, the bipartisan consensus of years past was gone—long gone. The mainstream media exploded. Twitter exploded. Major corporations like Apple and Cummins—and Wal-Mart, when similar legislation passed the Arkansas legislature—condemned RFRA. The NCAA followed suit. Deep-blue city governments, including those whose states had RFRA laws on the books for years, banned official travel to Indiana.

When reporters went searching for an Indiana business—anywhere in the state—that wouldn’t cater a gay wedding, it found Memories Pizza, a small-town pizza joint that had never been asked to cater a gay wedding, but whose owner answered that if it was, it couldn’t participate. An avalanche of hate, including alleged death threats, caused the owners temporarily to close their doors.

Critics disingenuously raised the specter of Jim Crow, recalled memories of the old South, and otherwise claimed that gay people were about to be sent to the back of the bus. Facts didn’t matter. Legal precedents didn’t matter. All that mattered was the thought that someone, somewhere, might try to raise RFRA as a defense for refusing to participate in a gay wedding.

Under pressure from activists and the national media, Indiana modified its law to state that it could not authorize a provider to deny services to anyone on the basis of multiple protected criteria, including race, sex, and sexual orientation. The “Indiana fix” soon led to a different “Arkansas fix.” Both fixes mollified the media and most gay rights activists, infuriated many conservatives—who saw them as cowardly—and placated the major corporations. The battle was over.

The battle may be over, but the war rages on. While many conservatives saw the quick capitulations by Indiana and Arkansas politicians and despaired (just as leftist activists exulted), the reality was far more complex and the presumed leftist victory far less clear. In reality, the battle lines are drawn, and there is little or no reason to believe that either side will triumph anytime soon.