Last week, Indiana Governor Mike Pence signed into law SB101, the state’s religious freedom bill, which prompted a sharp and vocal backlash. Critics say the bill will allow discrimination against the LGBT community on religious grounds. Amid the furor, law professor Douglas Laycock, himself a supporter of same-sex marriage, has come to the law’s defense. Religion & Politics corresponded with him over email about his views.
Laycock is a leading scholar on religious liberty issues. He had a role in crafting the 1993 federal Religious Freedom Restoration Act on which state laws like Indiana’s are based. He has also argued a number of important religious liberty cases at the Supreme Court. He is a professor of law and religious studies at the University of Virginia and vice president of the American Law Institute.
R&P: You support same-sex marriage, but you also have come out in support of Indiana’s religious freedom law. Why do you support SB101?
DL: A right to believe your religion, with no right to practice it, is meaningless. It is no more reasonable to expect religious believers not to act on their understanding of God’s will than to expect all gays and lesbians to remain celibate.
The Supreme Court’s interpretation of the First Amendment protects your right to believe a religion, but it provides limited, ambiguous, and highly contested protection for your right to practice a religion. Congress passed the federal Religious Freedom Restoration Act (RFRA), unanimously in the House and 97-3 in the Senate, to restore legal protection for religious practice. Bill Clinton enthusiastically signed it.
In 1997, the Supreme Court said the federal law could not be applied to the states. If states wanted to protect religious practice they would have to do it themselves. There are now 20 state RFRAs, and 11 more states that have interpreted their state constitution to mean the RFRA standard, so 31 states altogether. This includes all the largest states except California: Illinois, Michigan, Ohio, Pennsylvania, New York, Texas, and Florida.
Most of your readers have probably never heard of these laws, except for Hobby Lobby, because they haven’t done anything very controversial. There are very few cases, and the religious side loses far more often than it wins; these laws have been under-enforced, not over-enforced.
The critical fact with respect to all the hysteria over Indiana is this: No one has ever won an exemption from a discrimination law under a RFRA standard. Few have tried, and none have won. There is absolutely no basis in experience for the charge that these laws are a license to discriminate.
R&P: This week Gov. Mike Pence and the state legislature said they would amend the bill to clarify that their state RFRA does not allow discrimination against LGBT individuals. How could this be accomplished? And what precedent is there for this in other states?
DL: They could do something clumsy like exclude all discrimination claims, or all civil rights claims. The Texas RFRA does that. Of course religious liberty is a civil right.
They could do something more nuanced, that identifies the very small set of discrimination claims from which some religious objectors should be exempt, create specific exemptions for those, and exclude all the others from the state RFRA. The recent Utah legislation made an important start in that direction. There is now a statewide law barring discrimination on the basis of sexual orientation or gender identity in Utah—the reddest of red states. And there are important religious exemptions. The religious exemptions made it possible to enact a gay rights law.
They didn’t deal with all the issues; the new law doesn’t cover public accommodations. And the national gay rights organizations immediately denounced it and said it’s not a model for anywhere else. My understanding is that conservative legislators thought they had given away far too much, and held their noses as they voted for it.
And that’s really the problem. The two sides are so far apart, so polarized, so deeply mistrustful, that it is extremely difficult for them to agree on anything. The gay rights side increasingly appears to oppose any exemptions at all, except that they still seem to agree that the clergy don’t have to do the weddings. And we can’t even enact basic gay rights laws in most of the red states.
R&P: More broadly, how can states balance the civil liberties of LGBT persons with the religious liberty of others?
DL: Each side has to be allowed some space in which to live their own lives by their own values. We need to enact non-discrimination laws that cover sexual orientation in the states that don’t have that. I have filed a brief urging the Court to require marriage equality as a matter of constitutional law, and then to protect the religious liberty of dissenters.
Churches and religious organizations, which generally understand marriage to be an inherently religious relationship, should be allowed to retain their religious definitions of marriage. And for purposes of conducting the work of the church, they should not be required to recognize same-sex civil marriages that are simply not marriages on their religious understanding. This is the most important thing from the religious liberty perspective: inside the religious organization should be an enclave where religious rules control. The gay rights side has been unwilling to concede even that.
No one should get an exemption that permits him to refuse to serve gays and lesbians as such. Gays and lesbians should be free to go about their daily lives without fear of encountering discrimination. No substantial business should get any kind of exemption, even in the specialized cases I am about to discuss. If tasks that are religiously prohibited in the owner’s view will come in ordinary course to a rank-and-file employee who does not object, or can easily be delegated to such an employee, you don’t really need an exemption.
I would exempt counselors from doing marriage counseling or relationship counseling for same-sex couples. It is in no one’s interest to force a counselor to work with a couple, or subject the couple to working with a counselor, if the counselor thinks the couple’s relationship is fundamentally wrong in its very existence. But the gay rights side will not concede even that; important forces want to drive all these conservative religious folks from the helping professions. The principal battleground has been efforts to force graduate students out of their degree programs.
I would exempt very small businesses, where the owner has to be personally involved in providing the services, from doing same-sex weddings. If you understand marriage to be an inherently religious relationship, and a wedding to be an inherently religious event—and if you understand your job as a wedding planner, or caterer, or photographer, to make this wedding the best and most memorable it can be for your clients—and if you understand same-sex marriage to be fundamentally at odds with the Christian or Jewish understanding of marriage, then you believe that you are being asked to commit a sacrilege. You are being asked to promote and help celebrate a religious ceremony that is religiously prohibited.
So I would exempt the very small businesses in the wedding industry, provided that some other reasonably convenient business nearby is available to provide the same goods and services. The gay rights side is unwilling to even think about that. They don’t see that weddings are a religious context; they don’t distinguish declining to do a wedding from simply refusing to serve gays.
I think that any such exemption for small businesses in the wedding industry would have to be specifically legislated. The general language of a state RFRA is not likely to be interpreted to create such an exemption, because judges have always believed that nondiscrimination laws serve a compelling government interest.
And if I sound frustrated with the gay rights side, I am equally frustrated with the conservative religious side. They are often equally adamant in refusing to concede any rights to gays and lesbians. Most of their churches do not teach discrimination against gays as such, but they generally prevent the enactment of gay rights laws in red states, and they remain adamantly opposed to allowing gays and lesbians to marry. Neither side is willing to respect the liberty of the other, and that’s the central problem.
R&P: You helped craft the original federal RFRA, signed into law in 1993. What was the purpose of the law then? And why does it still matter now?
DL: I was pretty junior then, and my role has been greatly exaggerated over the years, but I did help. The law was a response to a Supreme Court decision, Employment Division v. Smith, in 1990. Smith said that the Constitution never protects religious practices from generally applicable laws. It’s still not clear what the Court meant by a generally applicable law. But it was clear that for religious practices to be protected, legislation was required. The federal RFRA was a direct response.
There have not been many cases, but there have been a few. In 2006, the Court unanimously protected a small group in Santa Fe, New Mexico, which uses hoasca as a central feature of its religious services. Hoasca is a mildly hallucinogenic tea from the Brazilian jungle; this is a much larger religion in Brazil. The services are tightly controlled, under the supervision of a religious leader; the participants report a heightened state of spiritual consciousness. The trial judge held a nine-day hearing, and found that the government had not proved either a health risk or a risk of diversion to recreational markets.
And then there is Hobby Lobby, which has also been widely misunderstood. The owners of Hobby Lobby believed they were being asked to pay to kill babies. I wouldn’t characterize it that way, but if that’s what you believe, that’s a very serious thing. For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.
The Court’s decision in Hobby Lobby was actually very narrow. The case was decided on the ground that the government had another way to provide free contraception to all female employees without making the employer pay for it. So the impact on female employees would be “precisely zero.” Hobby Lobby did not say that employees had to do without to accommodate the religious views of their employer; that would be a different case.
The Court recently heard a case based on a similar federal statute that applies the RFRA standard to prisoners, and the Court unanimously protected a Muslim prisoner’s right to grow a beard. [Editor’s note: Laycock was one of the lawyers for the plaintiff in this case.]
So RFRA remains important to protect both tiny minority religions like the group that uses hoasca, major world religions that are a minority in the United States, like the Muslim prisoner, and occasionally, major American religions that are slipping into minority status and losing public policy battles over their fundamental religious commitments.
R&P: Critics argue that the Indiana law is unique compared to the federal and state RFRAs in that it extends protection to businesses and allows lawsuits to be brought by individuals and not just the government. Are those assessments fair and are these differences in Indiana’s law significant?
DL: The assessments are not fair and the differences are not significant. The substantive standard in the Indiana and federal RFRAs is identical, word for word: If government substantially burdens a person’s exercise of religion, that burden must be the least restrictive means of furthering a compelling government interest.
On businesses, both the Indiana RFRA and the federal RFRA protect any “person.” The Indiana RFRA defines “person” to include corporations. Federal law also defines “person” to include corporations, in the very first section of the United States Code, commonly called the Dictionary Act. So the only difference is that in Indiana, the definition appears in the same statute; in the federal RFRA, it appears in a different statute and a different section of the code. In 1998-99, when Congress debated re-enacting a version of the federal RFRA that could be applied to the states, all the leadership on both sides agreed that the language of the federal RFRA covered corporations. When the Supreme Court in Hobby Lobby held that the federal RFRA protects corporations, that was a perfectly straightforward reading of the words of the statute.
On private parties, the federal RFRA was clearly intended to provide a possible defense (subject, as always, to the compelling interest test) when a religious organization or believer is sued, whether by a government or a private citizen. The statute specifically mentioned relief against a government, because of concerns about sovereign immunity (the rule that you usually can’t sue a state). And that created an ambiguity; did it mean only against a government? The drafting history is very clear about how this happened, and “only” is not what they said or what they meant.
Most states copied the federal language, and copied the ambiguity. And the New Mexico Supreme Court took advantage of that, and said no RFRA defense in a suit by a private citizen. So the Indiana bill addresses that ambiguity. If your church is feeding the homeless, and the neighbors don’t like it, it really doesn’t matter whether you get sued by the neighbors or sued by the city.
The Indiana RFRA is clear that no one can sue a private citizen under the state RFRA. It merely provides a possible defense if the private citizen sues a religious organization or individual. And the Indiana RFRA is also clear that no one who establishes a successful RFRA defense can recover attorneys’ fees from a private citizen. Fees can be awarded only against the government. I think that each of those points would also be the best reading of the federal RFRA, but the federal RFRA is actually ambiguous on those points. So Indiana didn’t just clarify that it could be invoked against private citizens; it also clarified the protections for those private citizens.
R&P: Two legal contributors to Religion & Politics recently argued that Hobby Lobby and the Supreme Court’s upcoming decision on same-sex marriage have spurred on the recent uptick in state RFRAs. What do you think of this claim?
DL: That is partly true. Twenty state RFRAs have been enacted gradually over the last 22 years; most of them are not recent. They are needed with or without the contraception mandate and with or without marriage equality. But some conservatives who feel threatened by marriage equality have pushed RFRAs in response. And some legislators have said silly things about all the protection state RFRAs will provide, promising the base things that they can’t possibly deliver with the general language of a RFRA.
No state RFRA will protect anybody from a Supreme Court decision that says the Constitution protects a right to same-sex marriage. No more specific language would protect against that either. States will have to recognize those marriages, and every county will have to issue marriage licenses, and if judges perform marriages, some judge in every locality will have to perform same-sex weddings.
All that a state RFRA can protect against is state law. So in Indianapolis, Bloomington, and South Bend, where there are sexual-orientation nondiscrimination laws, a state RFRA could be offered as a defense. But as I said at the beginning, judges have always thought that nondiscrimination laws serve compelling government interests, and no one has ever won a RFRA exemption from a nondiscrimination law. Such a thing may never happen, and if it ever does, it will be in very narrow contexts.
In the rest of Indiana, it was perfectly legal before the RFRA to discriminate on the basis of sexual orientation; there is no law for anyone to be exempted from. Indiana reporters who have called me have not been aware of any significant practice of discrimination against gays and lesbians. It must happen occasionally, in isolated instances, but if it were happening to any significant extent, there would surely be complaints to the media.
Marriage equality will affect nondiscrimination laws in one way: it raises the religious stakes. As I already discussed, seriously religious folks view a wedding as an inherently religious event. So once there is marriage equality, those nondiscrimination laws in Indianapolis, Bloomington, and South Bend now apply in much more seriously religious contexts.
R&P: Do you think the Indiana religious freedom law has been misunderstood?
DL: It has been misunderstood by some people, and deliberately distorted and lied about by others.
R&P: What is your take on the reaction to it?
DL: It is very sad. It is very bad for liberty in America when neither side will respect the liberty of the other, and when a basic and widespread provision for protecting religious liberty makes a state the subject of boycotts and denunciations. It is a disaster that religious liberty has become a partisan issue, with one party in favor and one party opposed, and both parties exaggerating what religious liberty can actually protect.
Of course the folks denouncing the Indiana RFRA would claim that they still support religious liberty. But they don’t. It is meaningless to say that you support religious liberty only so long as the religious practice isn’t anything you seriously disagree with. Anybody can respect the liberty to do things that are OK with him. Just as we protect the freedom to say things we disagree with, we have to protect the liberty of religions we disagree with.