Why no one understands Indiana’s new religious freedom law – Washington Post

Indiana became ground zero for the fight over LGBT rights last week when it passed its Religious Freedom Restoration Act, also more commonly known as RFRA. Opponents painted the law as allowing LGBT discrimination. Backers of the bill said the act would protect religious people from having to violate their religious commitments (especially by having to provide services to same-sex couples during a wedding or similar event).

Both sides are overselling the law’s impact, the proverbial case of a fire with more heat than light.

Under different circumstances, Indiana’s new RFRA would not be a controversial expansion of government protection of religious liberty. The law is a virtual copy of the federal RFRA that was enacted 20 years ago with near-unanimous support in Congress. The federal RFRA ensured that government could not burden religious exercise unless it was absolutely necessary.

For years, RFRA was uncontroversial. In 1997, many states passed their own versions of RFRA after the U.S. Supreme Court ruled that the federal RFRA did not apply to state and local laws. Like the federal law, these state laws were passed with little opposition and with the support of a broad coalition that included civil rights groups and churches.

So what’s so controversial about Indiana’s RFRA? Timing.

Indiana enacted its law after the federal courts ruled that same-sex marriage was now legal in the Hoosier state. Indiana not only didn’t have same-sex marriage, it didn’t (and still doesn’t) have a law that protects against discrimination based on sexual orientation.

RFRA was a way for the Indiana legislature to do something in response to the same-sex marriage ruling. RFRA was seen as a way to give residents and businesses that objected to same-sex marriage a way around having to cater to same-sex couples.

Legislators added some minor (but inconsequential) differences in the wording of RFRA in hopes of making it more applicable to cases involving discrimination. Despite having nothing on marriage, discrimination laws, or LGBT rights, the bill became symbolic as a fight over LGBT discrimination.

But the symbolic fight has little to do with what actually happens when RFRA claims are raised in the courts. RFRA allows people to make the argument in court that a law shouldn’t apply to them because the both burdens their religious expression and there is not a less burdensome alternative. This is seen as good news for religious minorities whose religious beliefs are often in conflict with the law. Regulations on education of Amish children, prohibitions against head coverings at work, and other laws can be challenged if there is another way for the state to accomplish the same purpose.

Both sides see RFRA as a fight over the limits of discrimination laws, but the new law will likely have little to no effect on discrimination in Indiana for two reasons. First, LGBT discrimination in Indiana is already legal. You don’t need a religious exemption to something you can already do. Second, even when discrimination laws hamper religious practice, there is not a less burdensome alternative. RFRA raises the bar on laws that burden religion but it does not give religion the power to veto laws.

In the 20 years since RFRA became federal law, there has not been a single case in which a person successfully used RFRA to get around civil rights laws. There have been some attempts, but they have all failed.