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In Religious Freedom Debate, a Retreat by Key Republicans

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By Perry Bacon Jr.

The debate over religious freedom laws this week illustrated the growing momentum of gay rights, with some key Republican politicians forced to adjust their policy stances and public comments as they worried about being cast as intolerant.

On Thursday night, Indiana Gov. Mike Pence signed a revised version of the religious freedom provision which touched off a national controversy that both embarrassed some in his state and may have ended his chances of becoming president. Pence backed the new provision, which includes special language that says religious freedom should be not used as a way to discriminate based on race, sexual orientation or gender, only five days after he strongly had defended the original law and said he would be unwilling to change it.

But Pence was not the only Republican who had to reverse himself within a few days. Legislators in Arkansas revised a similar provision in their state amid protests, and they made changes that will make it harder for private individuals or businesses to cite religious freedom as a way to avoid providing services as part of same-sex weddings.

Former Florida governor and leading 2016 candidate Jeb Bush, who on Monday had praised Pence and strongly defended the law, two days later adjusted his position and suggested that Indiana should have followed the model of Utah's religious freedom provision, which had included protections in its original version for people who are gay.

Meanwhile, another Republican, Michigan Gov. Rick Snyder, said he would not sign a religious freedom provision that is being considered in the Michigan state legislature.

The shifts by top Republicans irritated religious conservatives, who are very comfortable asserting the view that businesses should be allowed, based on the religious beliefs of their owners, not to take actions that could be considered as condoning gay marriage.

"We have watched a sad spectacle this week as one Republican elected leader after another retreated on the rights of people of faith to have space to express their religious beliefs and defend their conscience," said Tim Head, executive director of Faith & Freedom Coalition, a national conservative group. "When criticized on the simple issue of the First Amendment right to exercise one's religion, they folded like a cheap suit."

Louisiana Gov. Bobby Jindal, a 2016 presidential candidate, also defended those opposed to same-sex marriage.

"Here in America, we shouldn't force those with sincerely held religious beliefs to participate in ceremonies they don't want to. That's the real discrimination," Jindal said in an interview with a Des Moines radio station that his aides distributed to reporters.

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In Religious Freedom Debate, a Retreat by Key Republicans

Indiana 'fixes' religious freedom law

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Top Indiana Republican lawmakers overhauled their week-old religious freedom law Thursday with a follow-up measure intended to ease concerns driven by businesses that it could lead to discrimination. Gov. Mike Pence then signed it into law.

The changes appear to have tamped down some of the criticism -- but in doing so Pence and lawmakers infuriated social conservative activists and set the stage for a bigger fight next year over expanding Indiana's anti-discrimination law to cover gays and lesbians.

Republican legislative leaders unveiled their series of changes Thursday morning to the law that triggered intense backlash from businesses, sports associations, pro-LGBT groups and even fiscally-focused conservatives when Pence signed it last week.

The GOP-dominated House and Senate approved a legislative fix, which was added into an unrelated bill, on Thursday, sending it to Pence's desk almost immediately.

Despite last-minute lobbying from conservative groups like Indiana Right to Life to get Pence to veto the fix, the governor signed it Thursday evening.

"In the midst of this furious debate, I have prayed earnestly for wisdom and compassion, and I have felt the prayers of people across this state and across this nation. For that I will be forever grateful," Pence said in a statement.

"There will be some who think this legislation goes too far and some who think it does not go far enough, but as governor I must always put the interest of our state first and ask myself every day, 'What is best for Indiana?'" he said. "I believe resolving this controversy and making clear that every person feels welcome and respected in our state is best for Indiana."

The changes prohibit businesses from using the law as a defense in court for refusing "to offer or provide services, facilities, use of public accommodations, goods, employment, or housing" to any customers based on "race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service."

It doesn't accomplish what the law's critics wanted most: Adding sexual orientation to the list of categories protected by Indiana's anti-discrimination law.

But that debate, GOP legislators acknowledged, is coming soon. House Speaker Brian Bosma said the backlash against the religious freedom law has "opened many perspectives" and that the anti-discrimination law "needs to be discussed."

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Indiana 'fixes' religious freedom law

So just what are religious freedom laws designed to protect?

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In a tumultuous week that included Big Business flexing its political muscles, lawmakers in Indiana and Arkansas walked a tightrope seeking balance between two core American values: religious freedom and protection from discrimination.

The governors of Indiana and Arkansas signed revised versions of their religious freedom laws, hoping to quiet critics who said the measures could allow discrimination.

Here is a guide for those seeking to navigate the legal thicket.

What is at stake?

In its starkest terms, the battle was between those who said they want to protect the practice of religion and those who feared that the laws could lead to discrimination against gays and lesbians. Freedom of religion is enshrined in the U.S. and state constitutions. An abhorrence of discrimination is part of the American culture, but when it comes to gays and lesbians is less securely tied to law.

Why are they in conflict now?

Both Indiana and Arkansas, conservative Republican states, passed versions of Religious Freedom Restoration Acts, laws designed to give peoplesome legal standing if they decide their religious beliefs prevent them from delivering goods and services to potential customers.

Some Christian merchants, notably florists and bakers, have said they did not want to provide services for same-sex marriages because their religious beliefs do not condone such nuptials.

Proponents argued that the law was needed to protect religious choice, but critics said the laws would be used to discriminate against gays and lesbians.

Is this the first time this type of conflict has taken place?

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So just what are religious freedom laws designed to protect?

40/29 in Little Rock: Arkansas house passes religious freedom bill – Video

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40/29 in Little Rock: Arkansas house passes religious freedom bill
40/29 #39;s Pedro Rivera is live in Little Rock after the state legislature passed H.B. 1228 Tuesday afternoon. Gov. Hutchinson said in a news conference that the bill needs to be amended before...

By: 40/29 News

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40/29 in Little Rock: Arkansas house passes religious freedom bill - Video

Views of the News: Indiana religious freedom law draws controversy – Video

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Views of the News: Indiana religious freedom law draws controversy
Indiana Gov. Mike Pence (R) signed a law Thursday, March 26 that will allow businesses to refuse services to members of the LGBTQ community based on religious reasons. Pence argues that the...

By: Views of the News

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Views of the News: Indiana religious freedom law draws controversy - Video

Hutchinson Asks Arkansas Leaders to Recall Religious Freedom Bill – Video

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Hutchinson Asks Arkansas Leaders to Recall Religious Freedom Bill
Arkansas Gov. Asa Hutchinson says he will not sign a religious-objection bill in its current form, telling reporters Wednesday that he has ordered leaders in the state #39;s General Assembly...

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Hutchinson Asks Arkansas Leaders to Recall Religious Freedom Bill - Video

Podcast 004: J.D. Meier with Sources of Insights talks about Freedom – Video

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Podcast 004: J.D. Meier with Sources of Insights talks about Freedom
Visit http://corefreedom.com/gift to get your free eBook. Visit http://sourcesofinsight.com to get in touch with J.D. Meier. To get your own work-at-home program (with discount), visit http://coref...

By: BlueprintForLove

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Podcast 004: J.D. Meier with Sources of Insights talks about Freedom - Video

The Bureau of Alcohol, Tobacco and Friends: Religious Freedom, Foreign Policy, and More Hillary E… – Video

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The Bureau of Alcohol, Tobacco and Friends: Religious Freedom, Foreign Policy, and More Hillary E...
A roundtable, cable-news style discussion of current events, politics, and popular culture from a conservative perspective. Hosted by RedState.com #39;s own Leon Wolf, and featuring his regular...

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The Bureau of Alcohol, Tobacco and Friends: Religious Freedom, Foreign Policy, and More Hillary E... - Video

Indiana adds protections to religious freedom law

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Top Indiana Republican lawmakers overhauled their week-old religious freedom law Thursday with a follow-up measure intended to ease concerns driven by businesses that it could lead to discrimination. Gov. Mike Pence then signed it into law.

The changes appear to have tamped down some of the criticism -- but in doing so Pence and lawmakers infuriated social conservative activists and set the stage for a bigger fight next year over expanding Indiana's anti-discrimination law to cover gays and lesbians.

Republican legislative leaders unveiled their series of changes Thursday morning to the law that triggered intense backlash from businesses, sports associations, pro-LGBT groups and even fiscally-focused conservatives when Pence signed it last week.

The GOP-dominated House and Senate approved a legislative fix, which was added into an unrelated bill, on Thursday, sending it to Pence's desk almost immediately.

Despite last-minute lobbying from conservative groups like Indiana Right to Life to get Pence to veto the fix, the governor signed it Thursday evening.

"In the midst of this furious debate, I have prayed earnestly for wisdom and compassion, and I have felt the prayers of people across this state and across this nation. For that I will be forever grateful," Pence said in a statement.

"There will be some who think this legislation goes too far and some who think it does not go far enough, but as governor I must always put the interest of our state first and ask myself every day, 'What is best for Indiana?'" he said. "I believe resolving this controversy and making clear that every person feels welcome and respected in our state is best for Indiana."

The changes prohibit businesses from using the law as a defense in court for refusing "to offer or provide services, facilities, use of public accommodations, goods, employment, or housing" to any customers based on "race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service."

It doesn't accomplish what the law's critics wanted most: Adding sexual orientation to the list of categories protected by Indiana's anti-discrimination law.

But that debate, GOP legislators acknowledged, is coming soon. House Speaker Brian Bosma said the backlash against the religious freedom law has "opened many perspectives" and that the anti-discrimination law "needs to be discussed."

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Indiana adds protections to religious freedom law

Indiana and Arkansas add LGBT protections to religious freedom laws

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LITTLE ROCK, Ark. Lawmakers in Arkansas andIndiana passed legislation Thursday that they hoped would quiet the national uproar over new religious objections laws that opponents say are designed to offer a legal defense for anti-gay discrimination.

The Arkansas House voted 76-17 to adopt a revised bill after Republican Gov. Asa Hutchinson asked for changes in the wake of mounting criticism. Hutchinson signed it only moments after the vote, saying the new version recognizes that "we have a diverse workforce and a diverse culture."

A parallel process played out at theIndianaCapitol as the House and Senate passed changes to a law signed last week by GOP Gov. Mike Pence, who quickly approved the revisions.

"Over the past week, this law has become a subject of great misunderstanding and controversy across our state and nation," Pence said in a statement. "However we got here, we are where we are, and it is important that our state take action to address the concerns that have been raised and move forward."

The new legislation marks the first time sexual orientation and gender identity have been mentioned inIndianalaw.

The Arkansas measure is similar to a bill sent to the governor earlier this week, but Hutchinson said he wanted it revised to more closely mirror a 1993 federal law.

TheIndianaamendment prohibits service providers from using the law as a legal defense for refusing to provide goods, services, facilities or accommodations. It also bars discrimination based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or U.S. military service.

The measure exempts churches and affiliated schools, along with nonprofit religious organizations.

Business leaders, many of whom had opposed the law or canceled travel to the state because of it, called the amendment a good first step but said more work needs to be done. Gay-rights groups noted thatIndiana'scivil-rights law still does not include LGBT people as a protected class.

Former Indianapolis Mayor Bart Peterson, now a senior vice president at drugmaker Eli Lilly, praised the changes but said the state's image must still be mended.

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Indiana and Arkansas add LGBT protections to religious freedom laws

Volokh Conspiracy: Religious freedom laws should not exempt antidiscrimination provisions

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Below, co-blogger Dale celebrates the fact that Indiana is going to exempt civil rights (antidiscrimination) laws from its state religious freedom act.

I dont think antidiscrimination laws presumptively deserve special status, and I therefore dont think they should be exempted from state RFRAs, or should otherwise be exempted from civil liberties protections, statutory or constitutional. In other words, state RFRAs shouldnt exempt antidiscrimination laws, and when courts are enforcing constitutional rights such as freedom of speech and freedom of religion, they should not find that antidiscrimination laws constitute compelling government interests sufficient to override those rights.

I argued this point in great detail in my 2003 book, You Cant Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. The first twenty-six pages of the book can be found here. Some of the arguments from that book appear in this essay in the North Carolina Law Review. this essay in the Missouri Law Review, this article in the University of Chicago Legal Forum, this article in Social Philosophy and Policy, and this article in The William and Mary Bill of Rights Journal. A chapter dealing with the ACLUs abandonment of civil liberties in favor of antidiscrimination laws is excerpted here.

As a historical aside, the liberal lefts hostility to RFRA didnt start with gay rights, but with cases in the 1990s in which religious landlords who owned a few rental units declined to rent to unmarried, heterosexual individuals. This ran afoul in some states of laws banning discrimination on the basis of marital status.

At the time, liberal civil libertarian groups like the ACLU didnt claim that this was just bigotry disguised as religion, but rather that though it was the exercise of religion, (a) antidiscrimination concerns, even ones as trivial as heterosexual couples being denied an apartment in a huge metro area with many other willing landlords, should trump religious freedom; and (b) given that courts might not always agree that antidiscrimination concerns are a compelling interest sufficient to trump statutory religious freedom rights, they would no longer supports RFRAs that didnt exempt antidiscrimination laws.

Thus, liberal opposition to RFRA seems to have originated as a combination of treating antidiscrimination as a trump over almost any other right (the national ACLUbut not all state ACLUshas so far exempted pure speech), and hostility to assertions of rights by traditional Christians, as opposed to the peyote-smoking Native Americans, Sabbatarians, Amish, and other groups more traditionally associated with free exercise claims.

In any event, gay rights advocates do have a legitimate concern that religious conservatives are seeking to target laws protecting people on the basis of sexual orientation rather than protect religious freedom, as such.

I have heard a very prominent religious conservative argue that religious freedom should protect the right of someone to not photograph a gay marriage because of religious objections to such a marriage, but should not protect the right of someone to not photograph an interracial marriage because of religious objections. This individual may have a coherent reason for believing that, but if so it wasnt apparent from his remarks, beyond the possibility that he thinks it would be politically infeasible to defend the latter.

So heres my suggestion: instead of exempting antidiscrimination laws from state RFRAs, instead write into the laws a provision that the compelling interest test should be applied with the same rigor regardless of which group an antidiscrimination law protects. Therefore, a photographer should have the same right, but only the same right, to refuse on religious grounds to photograph a gay wedding as an interracial wedding, or a wedding between a Jew and a Gentile, or whatever.

If RFRA advocates arent willing to defend the right of someone who believes that interracial or interreligious marriages are against Gods will to refuse to participate in such weddings, then they dont have much of a leg to stand on when it comes to gay marriage. But the better position is to allow exemptions in all those situations.

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Volokh Conspiracy: Religious freedom laws should not exempt antidiscrimination provisions

Arkansas religious freedom law now mirrors federal act

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In the wake of intense backlash against a similar law in Indiana, first-term Republican governor had rejected the first version Arkansas lawmakers had sent to his desk, instead asking for two tweaks so there would be no daylight between his state's law and the one President Bill Clinton signed in 1993.

"I think it's sending the right signal, the way this has been resolved, to the world and the country that Arkansas understands the diversity of our culture and workforce but also the importance of balancing that with our sincerely held religious convictions," Hutchinson said Thursday afternoon.

READ: Who is Arkansas Gov. Asa Hutchinson?

Hutchinson's decision to sign the law follows an uproar in Indiana, where Gov. Mike Pence has faced pressure from businesses, sports associations like the NCAA and popular culture figures to backtrack on a similar religious freedom law he signed last week. In Arkansas, was Wal-Mart applying the most pressure.

Hutchinson earlier this week asked lawmakers to recall the law that the Arkansas House had given final approval on Tuesday or to send him follow-up legislation that makes the changes he requested.

Meanwhile, Hutchinson said, he's considering signing an executive order that bars discrimination among the state's workforce.

"The issue has become divisive because our nation remains split on how to balance the diversity of our culture with the traditions and firmly held religious convictions," Hutchinson said then. "It has divided families, and there is clearly a generational gap on this issue."

What do you think of these laws?

Case in point, Hutchinson said: His son Seth signed a petition asking him to veto the bill and also gave his father permission to tell reporters he'd done so.

Arkansas Sen. Tom Cotton, a Republican, told CNN's Wolf Blitzer that it was a "legitimate question to ask" whether someone who "strongly believes that gay marriage is not consistent with her personal conscience" should be "compelled by law" to offer services to gay couples.

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Arkansas religious freedom law now mirrors federal act

Five things about Indiana's 'religious freedom' law

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Story highlights The controversy over Indiana's religious freedom law is complicated Some factors you might have not considered

You applaud the growing chorus of companies blasting the law as an invitation for businesses to discriminate against gays and lesbians, using religion as a cover.

Or, like Indiana Gov. Mike Pence, you are surprised at the backlash and maintain that it is basically a copy of a law that is already in the books at the federal level and 19 other states.

The issue drives a wedge because, well, the debate over religious freedom and gay rights is always heated, but also because the interpretations and motives behind the law can be questioned.

Whichever side you're on, here are five things you might not have considered when thinking about this controversy. These points might not change your mind, but offer context to better understand the uproar.

As the author of the 1993 federal Religious Freedom Restoration Act (RFRA), Sen. Chuck Schumer is one who can offer clarity over the controversy surrounding Indiana's version of the law.

Schumer mocks Indiana's contention that the state law is simply a mirror of the 22-year-old federal law. "That may be true only if you're using a Funhouse mirror," Schumer wrote on his Facebook page.

The federal law was intended to protect individual's religious freedom from government intervention, he said. The Indiana law justifies discrimination in the name of religious freedom, he contends.

Also, the law was envisioned to protect the religious freedoms of individuals, while the Indiana law also protects private companies, Schumer said.

So, how can the law's supporters claim it is basically a copy of the federal law?

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Five things about Indiana's 'religious freedom' law

Why Arkansas governor won't sign the Religious Freedom Restoration Act (+video)

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Responding to sharp criticism from local businesses and civic groups, Arkansas Gov. Asa Hutchinson (R) announced Wednesday that he would not sign his state's new religious freedom bill, unless it is amended to reflect federal law.

The bill, which passed the GOP-controlled legislature on Tuesday,would have a negative impact on our states image," Governor Hutchinson said.

"We wanted to have it [the bill] crafted similar to what is at the federal level,"he said."To do that, though, changes need to be made. The bill that is on my desk at the present time does not precisely mirror the federal law."

His decision comesas Indiana lawmakers face a backlash over their ownversion of the Religious Freedom Restoration Act (RFRA), which critics say permits discrimination against sexual minorities. The Arkansas measure is similar to the embattled Indiana law and, in some respects, affords even less protection against discrimination.

Prominent businesses and sports associations, such as Apple and the NCAA, put pressure on Indiana Gov. Mike Pence (R) to backtrack on the law. But in Arkansas, it was Wal-Mart, the states largest employer, applying most of the pressure. Its appeals appear to have paid off.

The bill "threatens to undermine the spirit of inclusion present throughout the state," said Wal-Mart CEO Doug McMillon in a statement posted on Twitterurging the governor to veto the bill.

The intensity of the backlash against religious freedom laws stunned many politicians. While 20 US states have Religious Freedom Restoration Acts that are similar to the federal law, most of the criticism levied against the bills in Arkansas and Indiana focused on how they differed from the federal version.

Unlike the laws in mostother states, the Indiana law was specifically written to ensure that businesses can use it to defend themselves against civil rights lawsuits, critics say.

The Indiana law explicitly allows any for-profit business to assert a right to the free exercise of religion and to use that as a defense against a private lawsuit by another person, rather than simply against actions brought by the government. The only other RFRA that affords such protection to for-profit businesses is South Carolina. Louisiana and Pennsylvania, on the other hand, specifically exclude for-profit businesses from such protection.

Both Indiana's law and the Arkansas bill allowlarge corporations to claim that their religious faith is violated by a ruling or mandate. In other states with RFRA legislation,only individuals or family businesses can make such a claim.

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Why Arkansas governor won't sign the Religious Freedom Restoration Act (+video)


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