Indiana, Arkansas diverge on religious liberty

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WASHINGTON — Religious freedom gained only a split decision in newly enacted laws for Indiana and Arkansas, its advocates say.

The governors of both states signed into law April 2 new versions of religious liberty proposals, but they differed significantly in their protection of freedom of conscience. Indiana Gov. Mike Pence and Arkansas Gov. Asa Hutchinson, both conservative Republicans, acted after their legislatures passed revisions of the Religious Freedom Restoration Act (RFRA) in the wake of heavy criticism of earlier measures.

Hutchinson signed the law after asking the legislature to revise a bill it had adopted, successfully urging lawmakers to send him a proposal aligned more closely with the federal RFRA. That law — enacted in 1993 by the nearly unanimously approval of Congress and the signature of President Clinton — requires government to have a compelling interest and use the narrowest possible means in burdening a person’s religious exercise. Twenty-one states have enacted versions of RFRA.

Pence, however, signed into law an amendment of the RFRA he had enacted only the week before — an amendment that failed to protect the conscience rights of business owners. While Indiana’s new language exempts pastors and churches from providing services for same-sex weddings, its prohibition of discrimination based on sexual orientation and gender identity offers no such safeguard for photographers, florists, bakers and others whose religious convictions prevent them from serving at such ceremonies.

Arkansas’ RFRA gained the commendation of religious liberty advocates, while Indiana’s new law received critical reviews.

Russell Moore, president of the Ethics & Religious Liberty Commission, applauded Hutchinson and Arkansas lawmakers for establishing “a model of strong protection of soul freedom for all citizens.”

“I wish Gov. Pence had shown the same leadership,” he said.

“Religious liberty is not a prize to be won by whatever group has the most votes,” said Moore. “Religious liberty is a natural right granted to all people by God.”

Jim Campbell, senior legal counsel for Alliance Defending Freedom, praised Hutchinson for endorsing legislation that protects “people’s freedom to follow their beliefs in their lives and work.”

“Government shouldn’t be able to punish Americans for exercising basic civil rights,” Campbell said. “Religious freedom laws ensure that freedom gets a fair hearing, and they limit the government’s power to intrude on our liberties.”

Regarding Indiana, however, Ryan Anderson, an expert on marriage and religious freedom at the Heritage Foundation, said the new language in that state’s law “amounts to nothing less than a wholesale repeal of the [law] with respect to those who need religious liberty protections the most.”

The new Indiana version “eliminates any balancing test for sexual liberty and religious liberty,” he wrote April 2. “It says sexual orientation should trump religious liberty. That’s bad policy.”

Both governors and their legislatures faced protests and pressure from gay rights organizations, major corporations and liberal politicians. Companies such as Angie’s List, headquartered in Indianapolis, and Apple criticized Indiana’s original law, while Walmart — which is based in northwest Arkansas — called for a veto of the first bill approved by state lawmakers. The NCAA, also based in Indianapolis, opposed Indiana’s original RFRA but applauded the amended version.

The controversy over the Indiana and Arkansas RFRAs is the latest example of the conflict between religious liberty and sexual liberty. Homosexual rights advocates and their allies contended the original measures gave private businesses a license to discriminate against gays, lesbians, bisexuals and transgender people. Defenders of RFRA denied the charge, contending the attacks demonstrated misinformation and misunderstanding about the proposal.

Moore defended the state RFRAs repeatedly in appearances on CNN and MSNBC.

“The hysteria around RFRA was based on mischaracterizations of the law,” Moore said during a roundtable discussion on CNN’s “State of the Union” Sunday (April 5). “There is a secularizing strand in American life that doesn’t understand religious motivations at all.”

He said on CNN’s “New Day” April 3, “I don’t believe anyone should be required to do something against their religious beliefs unless the government can show a compelling interest to require it. We’ve had RFRA at the federal level for over 20 years. It has never been successfully used to defend discrimination.”

Douglas Laycock, a University of Virginia law professor who supports same-sex marriage, made the same point in defending Indiana’s original law.

“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,” Laycock told the online news journal Religion & Politics April 1. “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.”

Laycock, who worked for passage of the federal RFRA, said most Americans have probably never heard of RFRA laws “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.”

Moore, in other media appearances, said March 30 on MSNBC’s “Hardball,” “I don’t want the government to force a Jewish musician to sing ‘Stand Up for Jesus’ at my revival meeting just because she’s in the public marketplace. And so we have to have a balancing act when it comes to respecting conscience and respecting religious convictions along with other issues of the common good.”

Moore told host Chris Matthews the coercion of Indiana when it enacted the original RFRA was a “confluence of sexual libertarianism and crony capitalism.”

Moore described sexual libertarianism as “the idea that sexual freedom trumps everything else and that it ought to be able to pave over the consciences of anyone else. That’s what we’re seeing all over the country right now. That’s the reason why we have numerous disputes and debates in which religious liberty — that once was an issue we could all pretty much agree on in American life — has become a culture war issue in ways that I think are going to be damaging for everyone.”

— by Tom Strode | BP

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