Should religious owners of flower shops or wedding photographers or cakemakers have the right to refuse their services to gay couples? Can a religious anesthesiologist refuse to participate if a woman is about to undergo an abortion?
For many religious conservatives, the answer to these questions should be “yes.” And many are hoping new “religious freedom restoration acts,” loosely modeled on a federal law passed in 1993, can help carve out space in which they do not have to participate in matters against their religious consciences.
On Monday, Indiana became the latest state to pass such legislation. Indiana’s Republican-dominated House overwhelmingly passed the bill 63 to 31, mostly along party lines, following the state’s Senate approval of a slightly different version last month. Republican Gov. Mike Pence has promised to sign the bill into law.
Such legislation has engendered much controversy. Indeed, it’s one of the latest skirmishes in an expanding cultural and legal battle that often pits religious conservatives against the advocates of gay and lesbian rights and same-sex marriage, now the law in at least 36 states and the District of Columbia.
Over a decade ago, many liberal states, including Connecticut, Illinois, and Rhode Island, passed their own versions of the 22-year-old federal Religious Freedom Restoration Act. Overall, at least 19 states have passed similar bills, since the federal law does not apply to the states, the US Supreme Court ruled in 1997.
But since last year, the Supreme Court’s Hobby Lobby decision has changed the bipartisan tenor of the law. The nation’s highest court used the federal religious freedom statute to rule that closely held corporations with religious objections to contraceptives were exempt from the Obamacare provision requiring their coverage. Since then, conservatives have seen state religious freedom laws as a means to combat the expanding definition of marriage, as well as other hot-button social issues.
“If we truly are doing things unto the Lord, our business can be ... a church or sanctuary,” argued Indiana Republican Rep. Bruce Borders on the House floor Monday, bringing up the question of the anesthesiologist. “People deserve protection in their businesses as well, not just on Sunday morning.”
The Indiana bill, like existing state and federal laws, allows individual religious freedom to trump other laws if they impose a “substantial burden” on the free exercise of religion. Unless the government can demonstrate a “compelling state interest” and prove that a law’s religious burdens were “the least restrictive means” of furthering that interest, religious freedom would prevail.
So far, state courts, including one in New Mexico, have rejected the religious conscience arguments for businesses refusing to serve gays and lesbians for religious reasons, ruling that nondiscrimination should hold sway in the public sphere. In 2013, the New Mexico Supreme Court said a photographer that refused to provide service for a gay couple violated the state’s human rights law, which included sexual orientation.
New Mexico, however, also has a Religious Freedom Restoration law on its books. But the state’s highest court ruled this statute did not apply in the case, since the government was not involved in the civil dispute.
Accordingly, religious conservatives in Indiana and others considering new bills have designed their legislation to apply “regardless of whether the state or any other governmental entity or official is a party to a proceeding implementing or applying the law.”
Such efforts have roiled advocates of gay and lesbian rights and same-sex marriage, who say this will make them, in effect, second-class citizens.
“Someone could use their religious beliefs to claim that they have the right to refuse complying with existing nondiscrimination laws,” said Eunice Rho, staff attorney with the American Civil Liberties Union, according to BuzzFeed. “Even though Indiana does not have a statewide LGBT-inclusive nondiscrimination law, major cities like Indianapolis have nondiscrimination ordinances that protect against discrimination based on gender identity and sexual orientation.”
Also, opponents of the religious freedom legislation worry that such bills define religion so broadly that any person could invoke religious liberty to claim an exemption from existing nondiscrimination laws – in public businesses as well as in private religious organizations and spaces.
Earlier this month, as the Oklahoma Legislature considered a new religious freedom bill, Democratic Rep. Emily Virgin introduced an amendment that would require businesses that refuse to serve gays and lesbians to post a notice “clearly visible to the public in all places of business, including websites.”
“The notice may refer to the person’s religious beliefs,” Representative Virgin’s amendment stated, “but shall state specifically which couples the business does not serve by referring to a refusal based upon sexual orientation, gender identity or race.” Republicans have shelved the bill, however.
But in Indiana, Governor Pence said in a statement Monday that the new law “is about respecting and reassuring Hoosiers that their religious freedoms are intact.”
“I strongly support the legislation and applaud the members of the General Assembly for their work on this important issue,” he said. “I look forward to signing the bill when it reaches my desk.”