The Heritage Foundation's Ryan Anderson (with whom I happen to disagree on same-sex marriage) appeared on Ed Schultz's MSNBC program (cough) last night to discuss Indiana's religious freedom law, and the resulting conversation culminated with the host instructing producers to silence Anderson's microphone. End of Discussion:
Schultz advances one false or misleading narrative after another, then loses his composure when Anderson (or "Mr. Ryan," as Schultz calls him at one point) replies with rapid-fire factual corrections. Schultz interrupts Anderson's first answer almost immediately to contest the statement that Indiana's law is effectively the same as other RFRAs, including the federal law, which have been on the books for many years. They are, in fact, virtually identical, with two relatively minor exceptions: First, the Hoosier State's law specifies that businesses are free to use RFRA claims to defend themselves from administrative sanctions and lawsuits, and second, it allows RFRA defenses to be mounted within private legal disputes that do not directly involve the government. Anderson calmly explains that Indiana's legislative text reflects both the Supreme Court's Hobby Lobby precedent, as well as the obvious reality that organizations like the New York Times and MSNBC can exercise First Amendment rights despite being corporations. On the second small distinction, which Schultz didn't raise, four US circuit courts and the Obama DOJ have affirmed that RFRA protections can apply in cases involving private entities. Defeated on the first point, Schultz moves on: "If a gay couple walks into a restaurant, and I own it," he bellows, "you're telling me in Indiana, if I own that restaurant, that I can tell them to get the hell out of here? And you don't think that's discrimination? That's the position of the right wing, correct?" Incorrect. Anderson challenges Schultz to point out any Indiana business that is denying services as a matter of course to gays and lesbians. Schultz doesn't respond, perhaps because it isn't happening. This form of discrimination wouldn't suddenly be "allowed" to happen under the new law anyway; it simply affords targets of government penalties or lawsuits the recourse of citing RFRA in their own self-defense...with no guarantee of success in court, mind you. Here's another point, raised earlier in the week by Gabriel Malor:
Indiana does not have a public accommodation law that protects against anti-gay discrimination, meaning there’s no state law in Indiana preventing anti-gay discrimination in businesses even before the state RFRA was enacted. Notably, despite the lack of such a law, nobody can point to any Indiana businesses that were discriminating against gays.
Under Schultz's scenario, yes, a restaurant owner technically could tell a gay couple to "get the hell out," based on Indiana law as it's existed long before RFRA was even on the radar screen. The new law doesn't change or impact that reality. But just as importantly, despite business owners having the "right" to deny blanket services to gays for many years, Indiana businesses aren't doing so. The Left has whipped up a self-righteous moral panic over a hypothetical situation that (a) is irrelevant to RFRA, and (b) has been proven to be unfounded by years of free, un-bigoted commerce in the state. As far as gay rights and RFRA are concerned (most RFRA legal relief has absolutely nothing to do with gay issues), the most likely application at stake involves whether small businesses run by religious people can use RFRA as a defense against legal action stemming from their decision to decline providing their talents and services at same-sex weddings specifically. This is a remarkably slender battleground. Such modest carve-outs are a reasonable and fair accommodation in a free society. A majority of Americans now support same-sex civil marriage, but a strong majority also believe that Orthodox Jewish florists, Muslim caterers and Christian photographers shouldn't be coerced into participating in those weddings if they'd prefer not to, on conscience grounds. A tolerant, diverse society should permit such modest allowances -- just as it should allow, say, an LGBT activist photographer to decline a job at an aggressively anti-gay rights organization's annual convention. Neither values-based choice should risk potentially business-destroying lawsuits. Let's try authentic coexistence, rather than racing around trying to pummel each other into submission. RFRAs offer the possibility for that sort of cultural breathing room.
Under the laws' balancing tests, people and businesses invoking RFRA defenses would first have to demonstrate that their religious exercise had been "substantially burdened." It seems reasonable to conclude that serving gays at a lunch counter or hotel would not meet that threshold, whereas forced involvement in an actual wedding event could (or should). Then the aggressor would need to show that superseding the defendant's religious liberties both serves a compelling interest, and is being meted out through the least restrictive means possible. These are healthy, welcome protections and standards. And once again, they do not guarantee that the defendants will prevail in the end. There is no "open license to discriminate" here; RFRAs merely ensure that targeted parties have an opportunity to invoke this defense. These facts are a far cry from the ignorant, indignant hyperventilation we've seen from many quarters over Indiana's new law. I'll leave you with the outrage du jour, wherein a local news station literally went door to door in a small town trying to smoke out a business that might discriminate against gay customers. They found...a pizzeria owner, who said she'd object to catering a gay wedding, thus unleashing an unhinged bullying firestorm of preposterous and frightening proportions:
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