After a national uproar over bills promoted as religious freedom measures and criticized as anti-gay, lawmakers in Indiana and Arkansas reversed themselves and approved new legislation last week to remove the most contentious language. Indiana Gov. Mike Pence and Arkansas Gov. Asa Hutchinson, both Republicans, signed the revisions into law.
In Indiana, the changes, while not outlawing anti-gay discrimination, clarified that the religious freedom law does not authorize such discrimination. The new Arkansas measure is nearly identical to the federal Religious Freedom and Restoration Act — narrower in scope than an initial bill — but it does not directly address discrimination. Background to keep the debate in context:
Q: How did these laws originate?
A: Twenty states have adopted "religious freedom" laws that are derived from the Religious Freedom Restoration Act, which was adopted nearly unanimously by Congress in 1993 and signed by President Bill Clinton.
But more recent versions of such laws, like the original ones in Indiana and Arkansas, contained language that broadened the potential impact. For example, both states' bills would have applied religious rights to corporations and said the laws could be invoked in private lawsuits, not just when a government agency has taken action said to impinge on a party's religious beliefs.
The 1993 federal law was narrower in scope. It arose in response to a case in which two members of the Native American Church in Oregon had been fired from their jobs in a drug-treatment center after they used peyote, an illegal drug, in a religious ceremony and then the state refused to pay them unemployment benefits. The U.S. Supreme Court upheld Oregon's decision not to pay benefits, provoking a drive in Congress to pass a law to deter government actions that impinge upon religious beliefs.
The Supreme Court said later that the federal law applied only to actions by federal agencies, so many states started adopting similar laws.
The laws set up a common structure: When people feel that a "state action," like a fine or mandate, imposes a severe burden on their religious beliefs, they can ask a judge to decide whether the action is warranted by a "compelling" governmental interest.
Over time, civil rights advocates have come to argue that many of these laws are increasingly used not to protect vulnerable religious minorities but to allow some religious groups to impose their views on others. Supporters have argued that reliance on these laws is not an imposition but rather a form of protection so that religious individuals are not forced to act in ways that violate their beliefs.
Q: Why have these laws suddenly become so controversial?
A: In short, timing, context and substance. Initially, these laws were described as a way to protect individuals from harm — to prevent the government from forcing people to violate their beliefs unless there was a sound reason and no good alternative. They continue to be invoked, often without controversy: Just this year, the Supreme Court said that federal officials could not prevent a Muslim prisoner from wearing a beard, since the ban did not serve any overriding governmental interest.
But over time, in the view of many civil rights advocates, the laws were used in lawsuits and court decisions that went beyond the original intent, allowing people to act in the name of religion in ways that impinged on the rights of others. In some cases in the 1990s, for example, landlords cited their Christian beliefs to justify refusing to rent a house to an unmarried heterosexual couple. So groups like the American Civil Liberties Union, which had supported the laws, became more wary and recently have not supported the "religious freedom" bills unless they included anti-discrimination protections.
Now, the rapid spread of same-sex marriage — and the possibility that the Supreme Court will make it the law of the land this year — has given a new impetus to these laws. Religious conservatives say that if same-sex marriage must exist, those who find it sinful should not be forced to participate in any way. Under laws like the original one in Indiana, they say, vendors such as florists and photographers should be able to refuse to sell their services for same-sex weddings.
And the latest legislative proposals incorporate language that seems designed to strengthen the hand of religious businesses to refuse to serve same-sex weddings.
Q: Was the original Indiana law a "license to discriminate," as foes said?
A: Pence was right when he said that there was exaggeration of the likely effects of the law and misunderstanding of how it worked. It did not create an unchecked new right for restaurant owners, for example, to refuse to serve gay men or lesbians. And those who invoked the law to avoid fines or lawsuits would go through a judicial process in which the burden on their beliefs is compared with the state's interest in carrying out a mandate.
Many of those who pushed for Indiana's law said that they hoped it would protect vendors who refused to participate in same-sex weddings.
To civil rights advocates, "religious freedom," in this case, was code for simple discrimination and would not only inconvenience gay and lesbian couples but also relegate them to a form of second-class status.
Q: Were the controversial new laws different from the original federal law and those in other states?
A: The original bills in both Indiana and Arkansas included provisions that were not in the federal law or most other states' laws and that could broaden the scope of protection for religious businesses. Both of them said that for-profit corporations that are substantially owned by members of a faith could claim protections under the law. And both of the original versions broadened the definition of "state action," stating, in the Indiana legislation, for example, that a person who believed his religious rights were being violated could assert protection under the law "in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party."
In the Indiana and Arkansas legislation, language ensured that parties in private lawsuits or administrative actions could claim a religious basis for their questioned behavior. That was evidence, civil rights groups said, that the new push for "religious freedom" acts was very much about helping vendors discriminate against same-sex couples.
Q: Is it true that Clinton and Obama supported laws like these?
A: Clinton signed the federal law in 1993 at a time when the concept had across-the-board support and was seen as a way to prevent unjustified oppression of religious minorities.
Obama was among Illinois state senators who voted to adopt a Religious Freedom Restoration Act in 1998.
Pence was wrong when he said that the original Indiana law was identical to those once supported by Clinton and Obama. The Indiana law included new provisions that could broaden its reach.
The context is also different today. The role of these laws has been changed over time through lawsuits and court interpretations. The Indiana legislature had initially rejected a clause saying the new law could not be used to discriminate.
New York Times