Religious freedom laws like the one causing an uproar in Indiana have never been successfully used to defend discrimination against gays – and have rarely been used at all, legal experts say.
However, past may not be prologue in these cases, since gays have only recently won widespread legalization of same-sex marriage, and religious conservatives are now scrambling for new legal strategies to blunt the trend.
“There’s an inability to look to the past as a reliable predictor of the future on this,” said Robert Tuttle, a church-state expert at George Washington University School of Law. “If what you’re saying is that it can be certain it won’t be used – you can’t know that because this is now a different situation.”
Last week, Indiana Gov. Mike Pence signed the state Religious Freedom Restoration Act, giving heightened protections to businesses and individuals who object on religious grounds to providing certain services. The law triggered a swift and intense backlash from gay rights supporters, businesses such as Apple, and some states, which barred government-funded travel to Indiana.
Critics of the law say the intent is to discriminate against gays. They fear, for example, that caterers, florists, photographers and bakers with religious objections to same-sex marriage will be allowed to refuse to do business with gay couples. Supporters of the law say it will only give religious objectors a chance to bring their case before a judge.
Article continues belowOn Tuesday, Pence said he wants the Legislature to present him a bill by the end of the week clarifying that the new law does not allow discrimination against gays.
Pence said he does not believe lawmakers intended “to create a license to discriminate.” But he added: “I can appreciate that that’s become the perception, not just here in Indiana but all across the country.”
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Douglas Laycock, a constitutional scholar at the University of Virginia Law School who helped win passage of the 1993 federal Religious Freedom Restoration Act, said no one has ever successfully used such laws to override nondiscrimination statutes. He expressed frustration that gay rights advocates seem to be ignoring this in their attack on the Indiana law.
“I don’t know if they don’t know that, or whether they’re pandering to their base,” Laycock said.
But Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union, said the landscape shifted as gay marriage became legal in an increasing number of states over the past three years. Rho noted that when Indiana’s bill was moving through the Legislature, its supporters rejected amendments that would have limited its potential to allow discrimination.
She also noted that Pence signed the bill at a private ceremony attended by several leaders of conservative groups that have campaigned against same-sex marriage.
“The language reflects the desire to use these laws in a certain way, to be able to discriminate and cause harm,” Rho said.
Article continues belowThe federal law was enacted in 1993 with near-unanimous bipartisan support and was aimed mainly at protecting religious minorities from laws that inadvertently infringed on their practices. Among the few recent cases to invoke the federal law: an Apache leader who protested government seizure of eagle feathers that he used in a religious ceremony, and a Sikh woman who sued after the IRS fired her for wearing a ceremonial 3-inch dagger to work.
States began passing their own Religious Freedom Restoration Acts after the U.S. Supreme Court ruled in 1997 that the federal law didn’t apply to the states. Twenty states now have their own Religious Freedom Restoration Acts.
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Yet, the number of cases involving these laws has remained small. The laws, while of intense interest to religious groups, weren’t widely known, and many state judges didn’t understand them or interpreted them very narrowly, so “they’ve been under-enforced,” Laycock said.
“The bottom line is very few cases – and even fewer wins for the religious side,” Laycock said.
Tuttle said many people assumed that the protections applied only to religious nonprofits, not for-profit corporations, which further limited the potential for claims under the laws. That changed last year, after the U.S. Supreme Court ruled in the Hobby Lobby case that some private businesses with religious objections could opt out of the birth control coverage requirement in the Affordable Care Act.
In a key case in 2013, the New Mexico Supreme Court ruled that a photography studio violated the state’s Human Rights Act by refusing to photograph a lesbian couple’s commitment ceremony. The court rejected the studio’s effort to invoke the state’s Religious Freedom Restoration Act, holding that the law applied only to lawsuits against a government agency, not to disputes between private parties.
Article continues belowPartly in response to that case, conservative lawmakers in several states proposed a new wave of religious-protection legislation aimed at shielding people from private discrimination lawsuits if they felt that doing business with same-sex couples violated their religious beliefs.
Arizona passed such a law in 2014, but Republican Gov. Jan Brewer vetoed it amid intense criticism from major corporations and political leaders from both parties.
Now similar national pressure is being applied to Indiana and Arkansas, where enactment of a religious freedom law is expected soon.
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