Time to Stop the Freakout over RFRA in Indiana

Indiana’s governor signed a Religious Freedom Restoration Act last week, and from the media and business reaction you’d have thought it heralds The End of the World We Know It.

Indiana’s legalized discrimination!  Artists and companies — hurry up and boycott the state!

Seriously?

RFRA-map
Map of states with a RFRA law.

All this freakout over a law that’s existed at the federal level and numerous states (including that bastion of crazy conservative “thought” known as Connecticut!) for more than 20 years?

And RFRA, of course, does not legalize discrimination.  It allows for an individual to obtain a religious exemption to an otherwise generally applicable law when that laws burdens the person’s sincere religious exercise when the law’s not narrowly tailored to advance a compelling state interest.

This is normal constitutional balancing codified by statute.  It’s been tested over time, and it hasn’t legalized racial discrimination based on spurious religious beliefs.  It hasn’t legalized gender discrimination or sexual harassment based on spurious religious beliefs.  The courts balance the rights at issue in each case, precedent already exists to deal with spurious cases (in the event they are brought) and it won’t cause an issue.

It seems to me that people have totally lost their heads on this one.  A case (Hobby Lobby) went (in their view) the wrong way, and they freaked out.  But Hobby Lobby was as clear-cut a RFRA case as you can get; it made news only because it involved Obamacare and President Obama made it a focus.  Hobby Lobby involved nothing more than a reasonable accommodation to a law, not a wholesale license to ignore a mandate.

Whether or not you believe that America is a religious (much less Judeo-Christian) nation, religious liberty and freedom of conscience *is* a large part of America’s history — as are other individual rights — and these rights have always been balanced against other rights of individuals.

American history isn’t the story of the gradual ascendancy of one right over others; it’s the history of the successful balancing of rights based on mutual respect tolerance rooted in an ambiguous and inconsistent Constitution reconciled by the Supreme Court — and, in their better moments (see, e.g., Utah’s HB 296), by policymakers as well.

That’s the history.  But when we get all worked up over an issue, we forget that — or else just reveal to everyone that we just plain never learned it.

So here we are again.

rfra-photo
RFRA protest in Indiana.

Outraged! Outraged, I tell you!

Do you recall the occasion when Mozilla’s CEO was basically run out of the company on a rail based on his quiet, personal support of Proposition 8 back in California?  For a couple moments last year, that ridiculous example of conscience policing caused some reflection among the public and policymakers — we paused production at the outrage factory to question whether maybe we were taking this all a bit far.

But we’ve settled comfortably back into the status quo, where every revelation of conduct that offends the sensibilities of the (in their view) finer educated folks demands outrage and a consequential response.

Hence, the CEO of a company bringing jobs to a state says he’s going to stand up for his employees by inflicting pain on a state — effectively promising to deliver economic sanctions of the type we might place on, say, Iran or North Korea — all because the state adopts a statutory policy that’s already in place in both conservative and liberal states since Bill Clinton was President.  And, of course, signed into law because Justice Scalia’s Supreme Court went too far (in the estimation of policymakers) to the left.

This just seems crazy to me.  But I guess outrage continues to be the status quo.

Whatever makes us feel better about ourselves, right?

Time for a deep breath and some more perspective.  Time to stop the freakout America.

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