Magazine | May 4, 2015, Issue

The RFRA Furor

Public commitment to religious freedom is not as strong as it should be

Nothing better illustrates the sheer irrationality of the national furor over the religious-freedom law passed by Indiana than the absence of a national furor over the religious-freedom law passed by Arkansas the following week.

Indiana passed a religious-freedom law that critics said amounted to free rein for discrimination against gays. Under pressure from liberals, the media, and businesses, the Republican legislature amended the law to quiet the critics. The Republican governor, Mike Pence, signed the amendment.

Arkansas got some of the same negative attention when its Republican legislature passed a religious-freedom bill that was also decried as anti-gay. Its Republican governor, Asa Hutchinson, refused to sign the bill until it was changed.

Supporters of both the Indiana law and the Arkansas bill said that they were merely creating state equivalents of the Religious Freedom Restoration Act that had been enacted at the federal level, to bipartisan acclaim, in 1993.  That law said that the federal government could impose a substantial burden on the exercise of religion only in furtherance of a compelling interest, and only by the least burdensome means possible. Otherwise courts would give people with religious objections to obeying a law exemptions from it.

There have always been some people who think that, as a matter of principle, everyone should have to follow all laws, with no exemptions based on religion. But the law has long allowed for such exemptions. For most of the three decades prior to the Religious Freedom Restoration Act, the Supreme Court had held such exemptions to be required by the First Amendment. Before the courts got involved, legislators had codified exemptions piecemeal.

This tradition remains sufficiently strong that few of the partisans in the battles over the Indiana law and the Arkansas bill attacked exemptions in principle. Instead, the critics mostly said that the state legislation went beyond the federal law in two troubling ways. It gave religious rights to businesses, not just to persons; and it applied to litigation in which the government was not a party. Even Fox News ran a graphic highlighting these supposed differences.

They were imaginary. The federal Dictionary Act defines “persons” to include corporations except when otherwise specified, and the Religious Freedom Restoration Act does not say otherwise. Legislative debates in the 1990s showed both liberal and conservative legislators to understand the law to apply to businesses. In last year’s Hobby Lobby decision, the Supreme Court held the law to apply to businesses, or at least closely held businesses, and only two of the liberal justices dissented. Most circuit courts have also ruled that the federal law applies to private litigation. The Obama–Holder Justice Department reads the law that way, too.

If the law is to allow religious exemptions, it makes sense to allow it in these contexts. The principle is identical. A kosher deli should be able to ask in court for a religious exemption to a food-preparation regulation that conflicts with its owner’s or owners’ faith. The reasonable questions to ask in such a situation are: Is this regulation necessary to advance an important governmental purpose, and is it the least burdensome way to do it? Whether the people asking for the exemption are seeking to make a profit should be irrelevant to the inquiry.

And because the point of the law is to guard against government infringements of religious liberty, it should not matter whether the government is actually a party to litigation that involves its infringement. Everyone understands this point when it comes to other freedoms. Imagine that a government authorized private lawsuits against newspapers for publishing content critical of the ruling party. We would not say that the government was respecting the freedom of the press, and we would not say this even if the government itself refrained from prosecuting any critics. Nor would it matter if the affected media outlets were for-profit corporations.

Tim Cook, the CEO of Apple, wrote an op-ed claiming that the Indiana law created a license to discriminate. No religious-freedom law has been read that way. There are almost no cases in which anyone has even asked a court to grant him a general right not to hire black people, or serve gay people, for religious reasons. There have been cases in which more specific exemptions from nondiscrimination laws were sought. A photographer in New Mexico, for example, did not wish to provide services for a same-sex wedding because of religious convictions. Even such narrowly drawn claims, which have generally been made by people who said that they would happily provide services in contexts other than weddings, have tended to lose in court.

The combined pressure of people who did not want wedding photographers to be able to bring such a claim to court, and people who thought the law went much farther than it actually did, was too much for Indiana Republicans. In the guise of “clarifying” their religious-freedom law, they amended it so that it could not be used to win exemptions from nondiscrimination laws.

Legislating under pressure, much of it misinformed, created some anomalies. Indiana does not prohibit discrimination on the basis of sexual orientation, although some Indiana communities do. In those places, a florist with a religious objection to same-sex marriage will probably have to swallow that objection. Everywhere else in the state, a company has the legal right not to serve gays at all, whether or not its owners have any religious motives.

Arkansas had a better outcome. Its revised version of the bill, which Governor Hutchinson signed, omitted any reference to businesses or private litigation. Instead it included a provision telling the courts to interpret the law in a way “consistent with the Religious Freedom Restoration Act of 1993,” that is, the federal law. That should mean that it is interpreted to protect businesses from private litigation.

It was an ingenious solution. It disarmed the critics’ main weapon: the claim that conservatives in Indiana and Arkansas were going dangerously beyond the federal law. But the new Arkansas law seems to accomplish exactly what the critics said they opposed. If it’s a kind of legislative hate crime to let businesses invoke religious rights in private litigation, the law should have been a new provocation rather than, as it seems to have been, an end to the national shoutfest. That denouement suggests that the controversy had very little to do with the actual substance of any legislative proposals.

Both states ended with greater statutory protections for religious liberty than they had previously had on the books. Indiana weakened its law but did not repeal it, and the weakening amendment will not affect many possible cases. (It would be irrelevant to a case involving the ceremonial use of peyote, for example.)

It is possible, then, to put an optimistic conservative gloss on the debate. It is also worth noting that Republicans were more supportive of religious-liberty legislation during it than they were during a flare-up over very similar legislation in Arizona in early 2014. A Republican governor vetoed that legislation after both of the state’s Republican senators and the 2012 Republican presidential nominee, Mitt Romney, denounced it. This time the Republican presidential hopefuls uniformly defended the law, if at varying speeds.

Yet the debate was also a setback for religious liberty. It is often said that rights should not be put up for a vote. Governments will protect rights, however, only if those who wield governmental power are committed to them. It depends, in our system, on votes by legislators, by judges, and ultimately by citizens.

Polling on these religious-liberty controversies is murky. The failures of religious-liberty claimants in cases involving same-sex marriage, coupled with the absence of any effective protest against those failures, is a sign that the public commitment to religious freedom is not as strong as it should be. And the confused debate over religious-freedom legislation is a sign that the strength of that commitment is headed further downward.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

In This Issue


Politics & Policy

Hillary, Herself

Every Mystery Machine must have its Velma. You’ll remember Velma Dinkley, the grim-faced young fogey of the Scooby-Doo gang: turtleneck and knee socks, orange; pleated skirt and pumps, red; spectacle lenses ...
Politics & Policy

The RFRA Furor

Nothing better illustrates the sheer irrationality of the national furor over the religious-freedom law passed by Indiana than the absence of a national furor over the religious-freedom law passed by ...


Politics & Policy

John Doe’s Tyranny

‘They came with a battering ram.” Cindy Archer, one of the lead architects of Wisconsin’s Act 10 — also called the “Wisconsin Budget Repair Bill,” it limited public-employee benefits and altered ...
Politics & Policy

Drydock Time

A battle of the hawks is raging on Capitol Hill. Defense hawks say the nation’s security will be endangered if the caps imposed under the 2011 Budget Control Act aren’t ...

Books, Arts & Manners

Politics & Policy

Bold Fusion

By the second page of the introduction, I knew I would like this book. American conservatism is “marked by its unorthodoxy and its radicalism,” observes the British-born National Review writer ...
Politics & Policy

Genres without Borders

Everything changed in 1922. Until then, novelists were novelists. End of story. So to speak. Jane Austen, Charlotte Brontë, and Emily Brontë wrote beautiful, moving narratives that examined the relationships between men ...
Politics & Policy

Way to Live

‘Strength and gentleness go hand in hand.” That’s one of the lessons Dana Perino learned from her grandfather early on, living the ranching life in Wyoming. Her new book is ...


Politics & Policy


Learning from Dorothy Jay Nordlinger’s piece on Dorothy L. Sayers (“Sing It, Dorothy”) in the April 6 issue of National Review spoke to my heart. More than a decade ago I ...
Politics & Policy

The Week

‐ In the tense negotiations over a nuclear deal with Iran, Obama swore he would make no concessions to America’s most dangerous enemy. Unfortunately for him, Congress held firm. ‐ Farmer’s ...

Rand’s Riposte

Hillary is running for president, a turn of events so shocking you could knock me over with a feather or a dossier of her Senate accomplishments. Expect the press to ...
Politics & Policy


FOR MARIA SHARAPOVA Harder, harder, harder — slam the ball Down through the claws of those opposing hands. The prince and duchess, present in the stands, Will soon invite you into Anmer Hall. They recognize ...
Happy Warrior

Who Is for Hillary

Below, for posterity, a partial list of the things that happened in the first 24 hours of Hillary Clinton’s 2016 presidential campaign: Clinton’s announcement, the circumstances of which she had nearly ...

Most Popular

White House

The Trivialization of Impeachment

We have a serious governance problem. Our system is based on separation of powers, because liberty depends on preventing any component of the state from accumulating too much authority -- that’s how tyrants are born. For the system to work, the components have to be able to check each other: The federal and ... Read More

‘Texodus’ Bodes Badly for Republicans

‘I am a classically trained engineer," says Representative Will Hurd, a Texas Republican, "and I firmly believe in regression to the mean." Applying a concept from statistics to the randomness of today's politics is problematic. In any case, Hurd, 42, is not waiting for the regression of our politics from the ... Read More

Feminists Have Turned on Pornography

Since the sexual revolution of the 1960s, the feminist movement has sought to condemn traditional sexual ethics as repressive, misogynistic, and intolerant. As the 2010s come to a close, it might be fair to say that mainstream culture has reached the logical endpoint of this philosophy. Whereas older Americans ... Read More

Put Up or Shut Up on These Accusations, Hillary

Look, one 2016 candidate being prone to wild and baseless accusations is enough. Appearing on Obama campaign manager David Plouffe’s podcast, Hillary Clinton suggested that 2016 Green Party candidate Jill Stein was a “Russian asset,” that Republicans and Russians were promoting the Green Party, and ... Read More

Not Less Religion, Just Different Religion

The Pew Poll tells us that society is secularizing -- particularly among the young -- and who can deny it? That is one reason that the free expression of religion is under such intense pressure in the West. But it seems to me that we aren't really becoming less religious. Rather, many are merely changing that ... Read More