What does the Indiana Religious Freedom Restoration Act actually say? The core text of Indiana's Religious Freedom Restoration Act (RFRA) actually says: "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."
What does that even mean? Indiana’s RFRA statute sets forth and restores a balancing test to be applied by a court in cases where a claimant or a defendant asserts that a law or regulation infringes on her religious liberty in violation of her First Amendment rights to the free exercise of religion.
What do you mean “restore”? This was the balancing test which the United States Supreme Court applied to such cases in the 1960s, 1970s, and 1980s, before repudiating this test in 1990, in the case of Employment Division v. Smith, which upheld a federal law banning the use of peyote, even though it burdened a Native American’s right to utilize peyote in religious ceremonies. The Smith case led congress to enact the federal version of the Religious Freedom Restoration Act, with large bipartisan support. Over 90 Senators voted for the legislation, and it was sponsored by, among others, Democrat Chuck Schumer of New York and was signed into law by Bill Clinton. When the Supreme Court held that the Federal RFRA only applies to federal legislation, several States began passing State RFRA’s. Barack Obama voted for the Illinois RFRA when he was an Illinois legislator.
How many states have a State RFRA? Around 20, with another 10 states having equivalent case law or judicial rules.
Where does Indiana’s RFRA statute say that businesses can discriminate against gays. Did you fail to quote that part? The statute doesn’t say that. You’ve been lied to by left wing hacks in the news media and celebrities on Twitter, who relied on your gullibility and susceptibility to populist demagoguery to inflame your passions with respect to a statute which, let's be honest, you had never previously read and whose history and meaning and contents you knew nothing about.
But won’t some people try to use the law to be allowed to discriminate against gay people or to be excused from providing services to same sex weddings? Sexual orientation is not currently a protected class under Indiana's anti-discrimination laws, so probably not. But, at some point in the future, yes, it is possible that some people will try to use the law in this way. And some people (those evil and nefarious nuns, the Little Sisters of the Poor, for example), might try to use the law to be excused from any health care regulations Indiana might pass which would require them to provide abortifacients to their employees against the employer’s religious conscience, and some indigenous peoples will try to use the law to escape prosecution for smoking peyote or using eagle feathers in their religious ceremonies, and other people will invoke the law in all kinds of other circumstances, to be freed from the ever widening scope of big government's intrusion into every aspect of our lives, just like people used to invoke the same balancing test under the First Amendment in the 1960s and 1970s and 1980s, during which time period, the Republic maintained its existence just fine. Whether all these people succeed or not is a different story and will depend on how Indiana courts apply the balancing test to the facts of any particular case. A wedding photographer in New Mexico, for example, was prosecuted and fined under a New Mexico anti-discrimination statute for declining to provide her services to a same sex commitment ceremony, and this fine was upheld by the New Mexico Supreme Court, despite the wedding photographer’s invocation of New Mexico’s RFRA (the court distorted the facts and rewrote New Mexico's anti-discrimination statute to reach this result, but that's a post for another day). As with any law, it's effect on any given set of facts will be determined on a case by case basis, depending on the facts of that case, and the degree to which the judge is or is not able to exercise intelligence and impartiality.
So how come there's so much attention to Indiana's RFRA, when no one protested any of these earlier laws? It's been a bad news week for Hillary Clinton and the Obama administration (missing emails; concessions to Iran) and so the news companies decided you needed to be distracted by lurid tales of heartless conservatives discriminating against people because of their sexual orientation. Also, the left has become much more comfortable in actively seeking to undermine religious liberty in our country than they were even a few years ago, as they recognize that it blocks them from pursuing much of their agenda. Thus, Chuck Schumer has tweeted his outrage about the Indiana law even though he was a sponsor of the substantially identical federal RFRA and Hillary Clinton has tweeted her opposition as well, even though her husband signed the original substantially identical federal RFRA, and the New York Times, which editorialized in favor of the original RFRA, has editorialized against Indiana's substantially identical RFRA, using scare quotes around the phrase "religious liberty."
But I heard that Indiana's RFRA was substantially different from other RFRA statutes, such as the Federal RFRA or the RFRA's of most other States. Isn't that why Indiana's RFRA is so offensive? What you heard was false. After about 24 hours of what I am sure was very satisfying righteous indignation and smug sanctimony over Indiana's statute, a few inconvenient questions were asked in some corners of the internet, where calmer voices were being employed. Facts came out which made it seem awfully weird and hypocritical that Indiana's protestors hadn't been nearly as concerned with earlier enactments of the exact same law, sponsored or voted for or signed by some of their personal heroes. And so they desperately started trying to find something to give them post hoc justification and cover for their absurd lynch mobbing of religious freedom. Many of them, for the first time, had to actually find and read the law they had been protesting against. As they did so, two main talking points developed, each of which was disingenuous, deceptive, and false: First, they claimed that Indiana's RFRA protects for-profit businesses and the federal RFRA does not. This was false. The Federal RFRA did not internally define certain of its terms, including the "persons" who could invoke the law, which is what congress does if it wants the definitions established in the Federal Dictionary Act to apply. The Dictionary Act defines person as including corporations, just like the Indiana RFRA does. The U.S. Supreme Court's Hobby Lobby decision last term included this very obvious point. So the claim that the Indiana RFRA law is different from the federal law based on this distinction is simply bogus. There is no such distinction. Second, they argued that Indiana's RFRA was inherently malicious, or unique, in that it was allowed to be invoked even in cases which don't involve the state as a party. This talking point was also bogus. A large number of state statutes which allow the government to fine or penalize or jail or otherwise prosecute a citizen for unlawful behavior, also give a private right of action to private citizens who feel they have been victimized by a violation of the statute. (This prevents government from having to spend its own resources to prosecute every single case). A defendant who is either prosecuted by the government for violation of a statute, or sued by a private citizen for violation of that statute, is of course allowed in either case to bring all of the same defenses which they could have brought had they been prosecuted by the government, including by challenging the validity of the statute under which they are sued on any grounds available to them (due process, equal protection, first amendment rights, RFRA, that the facts don't match what the statute prohibits, yada yada yada). This principle goes without saying and is essentially obvious and axiomatic. The fact that Indiana's RFRA explicitly stated this obvious fact did not mean that it would otherwise have been untrue; nor does the fact that other state RFRA acts don't make this point explicit mean that the law would be applied any differently in those States.
Are you one of those people who think they should be allowed to discriminate against Homosexuals or others with a minority sexual orientation? No. I think the local Diner should be required to accept the money of any paying, appropriately clothed, customer, regardless of that customer's sexual orientation, or race, or religion, or gender, or disability. And I am confident that nothing in Indiana's RFRA statute would allow a Diner operating under an anti-discrimination law to suddenly get away with doing otherwise, just as I am confident that conservative religious believers are not itching to engage in such discrimination, and that anyone who tells you different is selling something. I also personally think that florists shouldn't care what their customers are going to use their flower arrangements for, and bakers should probably be in the same category, although the facts of any particular case might make me change my mind. I do think, though, that people who don't want to participate in an event which violates their religious or social conscience, or which implies endorsement of the event or of the customer's message, should be allowed to decline doing so, without being prosecuted under an anti-discrimination statute or fined or penalized for their behavior. For example, if a caterer or a photographer who would be happy to provide services to gay customers in other contexts, and are not discriminating against a customer because he is gay, do not want to participate in and attend or host a same-sex wedding due to their religious beliefs, they should be allowed to decline. They are not, in that instance, discriminating because of their customer's sexual orientation, but declining to endorse or participate in something with which they disagree. Similarly, if a gay couple's web design business doesn't want to assist an evangelical Christian in setting up an anti-same-sex marriage web page, but would be perfectly happy to provide design services for his tax consulting business's web page, the gay couple should be allowed to make that choice. Why? Because that choice was not based on a desire to discriminate against the customer due to his religion, but instead involved a desire to avoid participating in an activity which violates their conscience or in endorsing a message with which they disagree. Different courts will come down differently in these various examples, and the opinions of others will differ with my own. All that RFRA does is provide the balancing test to be employed in examining such cases, it does not say who will win in every such case.
But aren’t people going to be discriminated against in Indiana now? Yes, many many people are being discriminated against as a result of this new RFRA law. For example, states that believe in religious freedom are being discriminated against by Angie’s List, which is cancelling expansion plans in the state of Indiana, because of the law, which discriminatory conduct by Angie's List is clearly motivated by animus and hostility towards people who believe in religious freedom. A pizza restaurant whose owners answered a newspaper's hypothetical question about hosting a same-sex wedding had to close its doors because of an angry Twitter mob which threatened to burn it down, even though this angry twitter mob discriminated against this pizza establishment by not making similar threats against other similarly situated pizza restaurants.
What are the immediate consequences of this law? Cable TV news providers will continue to get richer while making Americans dumber and more angry at each other. Twitter will continue to prove that it allows just enough characters to promote a lynch mob mentality among people who like to get themselves really really sanctimoniously angry over stuff they don’t understand.