I had been waiting to write on Indiana’s religious freedom law until after the hyperbolic furor had died down, but I see that, given the important things going on in the world, like the part where Iran is negotiating its way to a nuclear bomb, that will probably never happen.
Having once done Constitutional appellate litigation before I realized how soul-crushingly boring any kind of appellate litigation was and moved over to politics, I have more than a passing familiarity with religious freedom laws. Religious Freedom Restoration Acts have been around since 1993 when Sen. Chuck Schumer and then-President Bill Clinton happily codified one into Federal law, and have been the subject of over 20 years of litigation, meaning that all RFRAs – those belonging to the 20 or so states and to the Federal government – have been interpreted and narrowed, and in those same two decades, despite trying, a RFRA has never been successfully used to defend blatant discrimination.
But whatever. Facts are nothing compared to the combined and furious outrage of the Internet. The main argument about Indiana’s RFRA being “discriminatory” is that (1) it is the first law of its kind to pass after Hobby Lobby v. Burwell, and (2) people who oppose gay marriage were involved in getting the bill to the governor’s desk. Of course, timing and support, no matter how inopportune, have never been compelling causes for overturning or even clarifying a law. They’re mostly irrelevant. BUT THIS IS THE INTERNET, where the rules are made up and the points don’t matter.
This weekend, of course, the White House weighed in, suggesting that the law would “legitimize discrimination.” If that is, of course, how the White House feels, well, they’re going to have to have a long talk with their Commander in Chief, who, himself, “legalized discrimination” in Illinois, when he voted for an almost identical law in 1998.
After Mr. Clinton signed the federal act in 1993, “some 19 states followed that, and after last year’s Hobby Lobby case, Indiana properly brought the same version that then-state Sen. Barack Obama voted for in Illinois,” Mr. Pence said.
Indiana Senate Republicans made the same point in a Thursday press release, saying, “The bipartisan respect for religious freedom has also carried over to the votes for most state-level RFRA’s. For example, when President Obama was an Illinois State Senator in 1998, he voted for Illinois’ RFRA.”
Mr. Obama served as an Illinois state senator from 1997 to 2004. The Illinois act took effect in 1998.
White House spokesperson Josh Earnest fired back, saying that the argument isn’t legitimate since Obama voted on the measure in 1998, and, “If you have to go back two decades to try to justify something that you’re doing today, it may raise some questions about the wisdom of what you’re doing.”
But that’s not much of an argument. Twenty years ago, RFRA was in the Wild West of legislation, and Obama voted on the measure only five years after it has been first proffered in Congress, well before it was subject to almost constant, trying litigation, which clarified and narrowed its use. If anything, Obama voted on a much more expansive field of religious protection, and without any understanding of how the law would go on to be applied. He also voted on the measure at a time when the gay rights movement was far weaker than it is today. In 1998, few states had even considered the possibility of same-sex marriage or civil unions, and the “religious right” as its known, was in far greater control of the Republican party. Lawrence v. Texas, the Supreme Court case which overturned state criminal statues making sodomy illegal, which wasn’t even decided until 2003. At the time then-Senator Barack Obama was considering his own RFRA, “Lawrence” was just being arrested.
So if Indiana’s law truly does codify discrimination, Obama was assenting to an almost identical law at a time where discrimination was a much bigger possibility.
Indiana’s law does differ from some other RFRAs in a couple of key ways: it allows RFRA to be used as a defense in lawsuits brought by administrative bodies, and it allows closely-held corporations to use its protections. Gabrial Malor tackles both of those changes in his Federalist piece today, but suffice it to say, neither is a true aberration from other laws of this kind. The most notable difference in Indiana’s RFRA is pretty much how bat-poop crazy it makes everyone.
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