Today, in his ridiculous interview with George Stephanopoulos, Gov. Pence (R-Teabag) of Indiana tried to claim that the new IN "Religious Freedom Restoration Act" was not about discrimination against LGBTQ folks (though he refused to say it couldn't be used for that and refused to commit to make sexual orientation and/or gender identity a "protected class" in IN civil rights laws). One way he sought to mask the purpose of this law was to identify it with the federal RFRA signed by Bill Clinton in the 1990s and with numerous similar state laws like that of IL for which then-State Senator Obama voted.
To see why this is such a deception follow me below the FABULOUS orange bola to see how a law designed to protect religious minorities was twisted into weapon with which to bludgeon sexual and gender minorities.
As most people in the United States know, the 1st Amendment to the U. S. Constitution contains two religion clauses. The first is the No Establishment Clause: "Congress shall make no law respecting an establishment of religion . . ." the clause which, in the words of Thomas Jefferson to a group of Baptists from Danbury, Connecticut, fixed a "wall of separation" between church and state. (Jefferson was echoing a phrase by the Baptist, founder of the Colony of Rhode Island, and champion of religious liberty, Roger Williams from nearly a century earlier, "God hath placed a hedge or wall separating the garden of the church from the wilderness of the world.") The Supreme Court's interpretation of this clause had grown steadily stronger until in Lemon v. Kurtzman(1971) the SCOTUS developed a 3-fold test (unfortunately named the "Lemon test") for whether a law violated this clause or not: To sufficiently respect church/state separation, a law (1) had to have a secular purpose, (2) must neither advance nor hinder religious practice, and (3) must not "excessively entangle" the organs of government (local, state, or federal) with religious affairs.
In the 1980s, the Renquist Court began to chip away at this test, with Justice Scalia especially claiming that the 1st amendment's religion clauses were only designed to prevent a single denomination from being set up as a national church. Groups like the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State (where I once served as an intern) and the Baptist Joint Committee for Public Affairs (now called the Baptist Joint Committee on Religious Liberty) hired lawyers to defend the Lemon test and a "strict separationist" view of church-state affairs. We were not watching out for attacks on the OTHER religion clause of the 1st Amendment.
The second religion clause of the 1st Amendment reads ". . . or prohibiting the free exercise thereof." That is, Congress (and, after the incorporation of the Bill of Rights to the state level in the 14th Amendment, state and local legislatures) cannot write laws to restrict religious practice. Now, obviously this cannot defended in absolute terms. If my religion requires human sacrifice, the government's interest in preserving the lives of citizens overrides this and I cannot use "religious liberty" as a defense in a murder trial. Religious beliefs (or convictions) can be held without government interference, but acting on those beliefs has some restrictions. Where should the line be drawn?
Here, too, the SCOTUS decided a series of cases in an increasingly strong way, especially Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972). The "Sherbet test," which Yoder reinforced, said that government (local, state, and federal) must show a compelling interest in restricting any religious practice and the courts must give strict scrutiny to any law which, however unintentionally, unduly burdens the religious practices of individuals. For instance, Jehovah's Witnesses believe (for reasons I, as a non-Witness, do not grasp) that blood transfusions are wrong. The courts have held that such transfusions cannot be forced on them even to save their lives, but also, that Witness parents cannot prevent their children from receiving life-saving transfusions because children are too young to make their own life and death decisions and the government's need to protect its citizens is a compelling interest that overrides Witness belief where their children are concerned. (Now, when plasma separation became routine, and Witnesses had no problem with blood plasma, hospitals had to offer that option first since it accommodated their religious belief where possible.) For similar reasons, even during Prohibition, the Catholic Church was permitted to offer real wine (not grape juice) in the communion cup during mass. Sacramental wine was permitted even during prohibition because the government's desire for sober citizens, codified into the Constitution, still was not compelling enough to ban Catholic sacramental practice.
But, again, the Renquist court chipped away at this doctrine of "strict scrutiny" and "compelling interest" before "unduly burdening" religious practice. The case that set everything rolling downhill was Employment Division v. Smith(1990). The Native American Church, a religion which combined traditional religious practices of several different nations and tribes along with Christian influences, uses the drug peyote as a sacrament. A member of this Native American Church was employed as a federal prison guard. When he tested positive for peyote use, he was fired. He sued for unemployment benefits and was denied because the contract had a strict no drug use clause. His lawyers argued that this violated his religious liberty, specifically citing the Sherbet test and the accommodation of Catholic use of sacramental wine during Prohibition. As the case made its way to the SCOTUS, court watchers involved in church/state issues (including myself) were divided over which way the SCOTUS would rule. The more optimistic argued that Smith and the Native American Church would find their claim upheld because their was no compelling government interest in banning the sacramental use of peyote even in a "war on drugs." Those who were pessimistic about the majoritarian impulses of the conservatives on the SCOTUS thought that the court would deny Smith's claim, but claim that stopping drug abuse and keeping federal prison guards drug free WAS a compelling interest that met the strict scrutiny needing for burdening religious practice.
No one (or no one I knew and I was a low-level "insider" in church/state battles in those days) expected what actually happened. The scumbag (that's a technical term, btw), Justice Scalia, writing for the dumbass (another technical term) majority, struck down the Sherbet test. He not only ruled against Smith and others in the Native American Church but claimed that no strict scrutiny was necessary and that government did not need a compelling interest to burden or restrict religious practice. As long as laws were facially neutral, i.e., were not targeting or singling out particular religious groups for discrimination, then a law which indirectly restricted or burdened a religious practice was/is constitutional. Scalia replaced the Sherbet test of "compelling interest and strict scrutiny" with a "no coercion" test. If your religious practice is accidentally harmed by a facially neutral law that is not intended to coerce or punish your religious group, tough shit.
People were outraged and the outrage spanned the political spectrum of the early 1990s. Strict separation groups like the ACLU, Americans United, the BJCPA, and the People for the American Way made common cause with the Catholic Bishops, the American Jewish Congress, the Christian Legal Society (a very conservative group) and many others to craft the Religious Freedom Restoration Act which was designed to restore the strict scrutiny and compelling interest tests at the federal level--even if not having the finality of Constitutional law. It was introduced into the House by then Rep. Chuck Schumer (D-NY) and it passed the House unanimously and the Senate 97-3 and was quickly signed into law by Pres. William Jefferson Clinton.
In 1997, The Roman Catholic Archdiocese of San Antonio wanted to enlarge a church in Boerne, TX, but a law restricting changes to "landmarks" stopped them. The Archdiocese sued under RFRA and the case went to SCOTUS as City of Boerne v. Flores (1997). There the SCOTUS struck down part of RFRA applying to state and local laws, claiming that Congress had overstepped its bounds granted by the 14th Amendment. The federal application of RFRA was upheld. In response, Congress created the Religious Land Use and Institutionalized Persons Act of 2000 giving special consideration to property owned by religious groups which has not been challenged. Also, many states created statewide RFRAs to apply the federal law to the state level and it was IL's RFRA that then-State Sen. Obama championed.
In all this legal history, there is no mention of allowing businesses to discriminate on which customers to serve. There is no targeting of LGBTQ persons or Muslims or women trying to fill birth control prescriptions, etc. RFRA and its state counterparts were designed to stop a majoritarian minded SCOTUS and overreaching government from restricting religious practices--usually practices by minority groups overlooked by majorities. RFRA and its state clones were supposed to be protections for relatively powerless groups, not weapons by powerful groups against vulnerable individuals. So, what happened?
It began, strangely enough, with Obamacare. I think the POTUS and Congress were right to include contraceptive coverage in the ACA because as a father of daughters, I understand how essential this can be to women's health. But religious groups objecting to birth control did not want to provide coverage for it in health insurance plans.
The other start to this strange twist was Citizens United because, even though the case was about campaign finance regulations, the SCOTUS ruled that corporations are persons and entitled to free speech protection. Then the Hobby Lobby case extended this "logic" further, allowing a business to have a religious liberty claim--when never before in this country had "religious liberty" meant an employer's liberty to impose his/her religious convictions on employees (If my employer is a Jehovah's Witness, can s/he now deny blood transfusions in my health coverage because of his/her religious belief?) or customers.
The 3rd root of the use of RFRAs to target sexual minorities and other vulnerable groups is the fact that many states still do not include "sexual orientation" and/or "gender identity" in their civil rights protections. And the progress of gay rights, especially in the area of marriage equality, has produced an expected backlash. Yes, expected. In the history of nearly all struggles for social justice periods of progress are met with backlashes. So, some bright boy or girl in IN noticed that IN did not include sexual orientation or gender identity as a civil rights protected class and designed a RFRA that could claim, on its surface, to be just like the federal and other state RFRAs while actually becoming a potent tool to allow for discrimination. If not stopped here, it will spread, as MT and GA make clear.
But make no mistake: This is a perversion of RFRA and the long tradition of U.S. religious liberty, not an ordinary application of it as Pence claims. And any religious leaders or groups which endorse this in the name of RFRA and the 1st Amendment are being very cynical in twisting protection of minority individuals and groups into majoritarian persecution of even more vulnerable minorities.
Thanks for listening.