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Bringing A Little Sanity To Indiana’s March (Religious) Madness (Forbes.com) March 30, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You would think the sky is falling in Indiana.  Hundreds of protestors carried signs at the state capitol Saturday:  “hate costs the state” and “liberty for all Hoosiers.”  The mayors of San Francisco and Seattle rushed to announce that city employees could not travel to Indiana on government money anymore.  The new wise men of public policy—basketball analysts Charles Barkley and Reggie Miller and the Silicon Valley CEOs of Apple, Salesforce and Yelp—all decried hate and discrimination in Indiana.

But wait.  What really happened in Indiana?  The state enacted a Religious Freedom Restoration Act.  The U.S. Senate voted 97-3 for such a federal law in 1993 and President Clinton signed it.  Forty percent (19) of states have such laws, and others are considering them.  These laws—including Indiana’s version—essentially do one thing:  they set a legal standard in lawsuits where a defendant feels his or her religious freedom is being harmed by the application of a law or regulation.  More specifically, these religious freedom laws require a showing that the government has a “compelling interest” in whatever regulation is in question and that it is meeting that interest in the “least restrictive way” to the individual’s religious practice.

The words “gay” or “gay marriage” do not appear anywhere in the law.  A classic case under the federal law was whether members of a New Mexico church might imbibe psychotropic tea as part of their religious ceremonies in the face of a law against such substances.  The Supreme Court said that the state did not have a compelling interest in preventing that kind of private religious practice.  Or in Minnesota where a court said that a law requiring vehicles including Amish buggies to use bright fluorescent lighting should have used an alternative less restrictive to Amish religious practice such as reflective tape or kerosene lanterns.

But, of course, the knee-jerk reaction is that this law was passed to allow Christians to discriminate against gays and gay marriage and it is therefore hateful, discriminatory and unacceptable.  So far, however, no such bill has actually trumped local nondiscrimination laws, such as exist in Indianapolis and a dozen other Hoosier cities.  And in both the states of Washington (where a florist refused to serve a gay wedding) and Colorado (a baker did the same), courts have held that religious rights do not trump anti-discrimination laws against gays.  Admittedly neither of these states had a religious freedom restoration law, but again that only provides a legal standard or balancing test, not necessarily implying any different outcome.  How they are actually applied by courts vis-à-vis gay marriage is yet to be seen.

If the law on this is different than the protests suggest, so is the politics.  The federal law was sponsored by then-Congressman Chuck Schumer, apparently in line to lead the Democrats in the U.S. Senate.  And it was signed by Democrat Bill Clinton.  Then state senator Barack Obama voted for Illinois’ version of the bill.  Of course this was before his views “evolved” but it at least suggests that historically these bills have not been about hate and discrimination.

In the current white-hot debates over gay marriage, I submit that what the Indiana and other bills actually do is help manage an important policy dilemma.  As a society, do we value gay rights?  Increasingly the answer is yes.  Do we value religious freedom and practice?  Historically the answer is yes.  We value both, but they do not always live easily together.  What this bill does is help courts manage the dilemma—while protecting against discrimination, also protecting religious rights where the state has no compelling interest in violating them or where alternative policies less restrictive to religious rights should be pursued.

In a sense, there’s nothing to complain about in such a bill which sets up an appropriate constitutional balancing test.  The proof of the test will be in its application in the courts, not in its enactment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/03/30/bringing-a-little-clarity-to-indianas-march-religious-madness/

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