Following people on Twitter can make you dumber than you were before. Recently, the Washington Post’s Radley Balko posted on Twitter that “when Trump picked Pence, Pence was a very unpopular governor — in large part because he pushed an anti-gay ‘religious freedom’ bill so onerous it turned much of the state against him. Including his own party. In *Indiana.*”
Balko was falsely describing Indiana’s Religious Freedom Restoration Act. It didn’t even mention gays, much less single them out for special burdens. It was hardly “onerous.” It was modeled explicitly on the federal Religious Freedom Restoration Act, which has been on the books since 1993 (although that did not stop keep angry progressives from denouncing it). As the Washington Examiner pointed out, “The words ‘gay,’ ‘lesbian’ and ‘sexual orientation’ are nowhere to be found in” its “language,” and “no religious freedom bill has been used successfully to defend discrimination against members of the LGBT community in the 22 years since Congress and states began adopting such laws.”
Such religious-freedom laws are in fact commonplace, as two of Balko’s own colleagues admitted in the past. As The Washington Post’s Hunter Schwarz reported, many states have their own Religious Freedom Restoration Act, and “Indiana is actually … one of 20 states with a version of the Religious Freedom Restoration Act.”
These statutes require the government to justify any “substantial burden” on someone’s religious freedom by showing its action burdening their religion advances a “compelling state interest.” They do not, however, say that religious freedom gives someone the right to do whatever he wants, regardless of the consequences.
Religious-freedom defenses to gay-rights claims fail either because a court finds a “compelling interest” in getting rid of sexual-orientation discrimination, or because the court finds no “substantial burden” on religious freedom to begin with. These religious freedom statutes are pretty useless for business owners facing a discrimination complaint. They are virtually toothless in the gay-rights context. Their toothless nature is why religious people who oppose gay marriage rely on the First Amendment’s freedom of speech, not these state religious-freedom laws, as their primary defense when they are sued for failing for failing to help publicize and promote gay marriage (such as wedding photographers who object to filming a same-sex wedding, or printers who object to printing same-sex wedding invitations, or wedding-cake makers who object to object to sculpting wedding cakes specifically for a gay wedding).
Some people contended that Indiana’s law was somehow unusual in potentially applying religious-freedom as a defense to lawsuits, not just government prosecutions. But it was in fact typical on that score. The federal Religious Freedom Restoration Act on which Indiana’s law was modeled also has been interpreted to protect religious freedom against lawsuits, including lawsuits against businesses. As Washington Post fact-checker Glenn Kessler pointed out in 2015, it had already been interpreted to apply as a defense against lawsuits brought by private persons, by most (but not all) of the appeals courts that have addressed the issue, including “The U.S. Courts of Appeals for the 2nd, 8th, 9th and D.C. Circuits.” On this point, Indiana’s law merely made explicit what was already implicit in the federal law, as legal commentators like Reason’s Jacob Sullum and law professor Josh Blackman explained.
In short, the apocalyptic predictions by progressives about Indiana’s law were baseless. It was not “onerous,” nor did it single out gay people, contrary to Radley Balko’s claim.