Why Mike Pence is right about RFRA....

I do not like Mike Pence. I do not like the Republican party. But I dislike wrongness more than either of them, and the collective outcry about Indiana's RFRA law is based on a misunderstanding of the law. In fact, Pence's explanation of what the law does and does not do in the press conference he gave and in his Washington Post editorial are correct. Why? Here is why Pence was right.

1.Sexual orientation is not a protected class under state law for purposes of public accommodations

Therefore, businesses in most of Indiana (land-mass wise) can already refuse service to gay people. The law would do nothing to change that.

2. The text of the RFRA law specifies that religious liberty CAN be burdened by laws that further a compelling state interest and which promote that interest through the least restrictive means

This language is explicit in the RFRA law, Section 8 (read it here) Yes, the law makes it easier for people to assert a religious freedom claim against state laws, but those claims are explicitly limited to laws that fail to meet these two standards of a compelling government interest + least restrictive means. Together, these two criteria are referred to in legal jargon as "strict scrutiny." So, even under RFRA, laws can still trump religious freedom if they pass the strict scrutiny standard.


3. In municipalities that have local ordinances banning discrimination against gay people, the RFRA law would not provide a religious exemption, because courts have consistently found that anti-discrimination laws DO in fact meet the standard of strict scrutiny

Racial discrimination in public accommodations was banned in the Civil Rights Act of 1964. In legal challenges to that law, businesses asserted their right to freedom of association. The court found that burdening freedom of association was permissible in this case, because ending discrimination constituted a compelling state interest imposed by the least restrictive means. Case law has consistently backed this interpretation of anti-discrimination laws.

There is no reason to believe that courts would not continue to rule that local anti-discrimination ordinances meet the strict scrutiny standard. RFRA is useless if the law burdening religious expression meets that standard.

4. So if this law doesn't create a legal right for businesses to discriminate against gay people, does it do anything? What was the point if not that?

Indiana's RFRA, like other states' RFRAS and the Federal RFRA, are designed to make it easier for people to win court cases where they assert a religious liberty claim. People have always been able to argue in court that certain laws are unconstitutional because they violate an individual's free exercise of religion (remember that thing from the 1st Amendment?). Legislatures thought the courts were not giving enough deference to religious liberty in these cases, and they did an end-run around the judicial branch by creating a new law (RFRA) that imposed this strict scrutiny standard of review in these religious freedom cases.

The point of these laws is that strict scrutiny is a difficult standard for laws to meet! Many if not most laws will fail to meet the strict scrutiny standard. That means that it's very possible that a person who would have lost a religious liberty 1st amendment challenge would now be able to win in court by instead suing on the basis of RFRA. So, that's the point. It was probably inspired by the Hobby Lobby case, where Hobby Lobby used the Federal RFRA to nullify the part of Obamacare that required them to cover birth control in their health insurance packages.

5. But wait...you said anti-discrimination laws meet strict scrutiny, AND you said it's really hard for laws to meet strict scrutiny

That's correct. I sure did. Because that's the truth. Despite the fact that many laws won't meet the two strict scrutiny criteria, anti-discrimination laws almost certainly DO.

6. Is it possible a court will overturn precedent and rule that local anti-discrimination ordinances do NOT meet the strict scrutiny criteria?

Sure, it's possible. It's also possible that monkeys will fly out of my butt. There is a lot of legal precedent that suggests this is very unlikely.


7. But doesn't Indiana's RFRA differ from the Federal RFRA and other states' RFRAS?

Yes, it does differ in several ways, but it doesn't differ in any way that's material to this analysis. It expands the law to include corporations' religious expression. It expands the protections to private civil suits that might invoke aspects of the law. But none of that has anything to do with the only question that matters here, which is whether anti-discrimination laws meet the strict scrutiny criteria, because if they do, then the law just doesn't apply, period.

8. Is it possible that Mike Pence knew it didn't allow for discrimination, but wanted people to think it did, so the conservative religious base would like him?

Sure, I guess that's possible. If so, that symbolic gesture certainly turned around and bit him in the ass.

9. Are you saying, Joe, that you think this law is good?

No. I think it's going to lead to a lot of lawsuits and uncertainty, with people trying to avoid following laws they don't like. How bad that will be, I don't know. I just don't think the law has anything to do with public accommodations for lgbtq folks.

10. Is the language being added to the law going to change anything, or is it clarification?

Pence was right that the law didn't give anybody the right to discriminate, so yes, the new language will be a clarification of what the law already does.

11. Shouldn't Indiana pass state-wide civil rights legislation for gay people in employment, housing, and public accommodations, so they would be protected everywhere?

Absolutely! Indiana should absolutely do this, as should the Federal government! But that really has nothing to do with this law, because the law doesn't create a right to discriminate.

12. Can I still hate Mike Pence?

Sure! The Glenda Ritz fiasco is, in my opinion, borderline criminal, and you should hate him for that alone!