One of the oft-noted facts in the few weeks since the media backlash surrounding Indiana’s recently passed Religious Freedom Restoration Act is that 19 other states have similar laws. So why hasn’t controversy and negative public opinion bombarded all of these states? For example, Missouri has had a state RFRA for over 10 years, since 2003, and it was signed into law by a democratic governor. There is a problematic misconception that the Indiana RFRA (pre-amendment) and others like it would condone and promote rampant discrimination by companies refusing to serve the LGBT community.
As an article in Missouri Lawyers Weekly notes: “One problem with that argument is that RFRAs in the other 19 states and the federal government have been around for some time and the feared discrimination has never materialized. Indeed, there have been no cases of restaurants or retail stores that have been sued for LGBT discrimination that have sought to defend their discrimination as religiously protected conduct under RFRA.”
Earlier this month, Arkansas Governor Asa Hutchinson signed an amended state Religious Freedom Restoration Act into law. In light of the negative attention Indiana’s law drew, the governor asked the Arkansas legislature to change the language of the bill to be more closely aligned with the federal RFRA. Within a day, the amendments to the Arkansas RFRA had both Republican and Democratic co-sponsors. Like the federal RFRA, the amended statute in Arkansas is devoid of language that explicitly prohibits discrimination on the basis of sexual orientation or gender identity. Kathy Webb, the first openly gay person to run for and be elected to public office in Arkansas, stated optimistically of the amended bill that it was a “very bipartisan effort, we have a starting place from which to move forward.” Despite the bipartisan progress, insensitive (at best) comments made publically by Senator Tom Cotton and former Ark. Gov. Mike Huckabee threatened to erode the bridges the amended state RFRA language began to forge between religious freedom and LGBT rights.
The negative public discourse has not slowed down Louisiana. This state is moving ahead with H.B 707, the “Marriage and Conscience Act,” which states the state cannot take “adverse action” against someone for opposing same sex marriage for religious reasons. “The Louisiana bill really does what people accused the Indiana law of doing,” religious liberty legal scholar Doug Laycock told MSNBC.
Whereas Indiana’s RFRA, before it was amended, simply provided individuals with a defense they could offer in court, to be weighed by a judge, the Louisiana statute gives individuals with religious objections to same-sex marriage unconditional protection from adverse state interference. In other words, while Indiana’s RFRA provided an opportunity for a legal defense in court where competing interests would still needed to be interpreted and balanced by a judge, the “Marriage and Conscience Act” automatically gives religious individuals an absolute trump card over the interests of an LGBT individual or couple. We, as people of faith, need to consider the implications of supporting a statute of this nature, which goes beyond both the intent and scope of federal and state RFRA’s.
So what are religious freedom proponents in states with already existing RFRA’s, or states passing RFRA’s, to do? We may consider taking a strategic cue from Republican Michigan Governor Rick Snyder. On April 2nd, the MI governor clarified his position on a potential Michigan state RFRA, in light of the controversy around the Indiana law. He made clear that he would veto such a bill in his state if it was a stand-alone law.
“Snyder reiterated his belief that a RFRA bill will not get his signature without an accompanying bill that would expand the state's Elliott Larsen Civil Rights Act, which prohibits discrimination in housing and hiring, to the LGBT community,” an article in the Detroit Free Press said.
This approach, one that works to proactively protect the LGBT community from pre-textual, baseless discrimination, while preserving the rights of faith-based organizations to practice their faith, may strike just the right chords to effectively protect existing state RFRA’s, as well as to help potential legislation in states without current RFRA’s move forward. Is it a perfect solution that satisfies everyone? No. But is it a possible, pragmatic approach that allows people and organizations of faith a chance to preserve their sincerely held beliefs while extending justice and compassion toward another legally vulnerable population? Quite possibly.
-Chelsea Langston is the Director of Equipping and Membership for the Institutional Religious Freedom Alliance.