Commentary on Indiana's Religious Freedom Restoration Act – Some Good, Some Not so Good

I have been reading a lot about the Religious Freedom Restoration Acts in Indiana and Arkansas. In addition, I have been reading background materials to the bills. The material is inherently interesting and I want to firm up my thinking on the matter.
In doing so, I have run across helpful and unhelpful op-eds and commentary. This post annotates some of those sources. I plan to post some additional information and commentary through the week.
First, I want to post the articles which appear to me to be accurate and are therefore helpful. I may not agree with every conclusion but as far as I can tell the information is right.
What Will the Indiana Religious Freedom Law Really Do? by Jonathan Adler – The accurate articles I present at this point (I may add more) mostly come from the Volokh Conspiracy, a legal blog published by the Washington Post. I think this is the best blog to follow on this issue. Adler’s article refers the reader to an earlier Volokh post about how the RFRA is supposed to work.

Therefore, the rule now is that there is a religious exemption regime as to federal statutes (under the federal RFRA), and as to state statutes in the about half the states that have state RFRAs or state constitutional exemption regimes. Religious objectors in those jurisdictions may demand exemptions from generally applicable laws that substantially burden the objectors’ practice, which the government must grant unless it can show that applying the laws is the least restrictive means of serving a compelling government interest.

In the Indiana case, bakers who don’t want to bake a gay wedding cake may demand an exemption from a jurisdiction law (some cities in Indiana added sexual orientation to their non-discrimination ordinances) which requires non-discrimination based on sexual orientation or gender identity. Unless the government in the jurisdiction can show a compelling government interest in enforcement of the non-discrimination ordinance as the least restrictive means of enforcing fair and equal treatment.
Those who say they want religious freedom but don’t want discrimination aren’t playing fair with the language. At times, religious freedom to some means discrimination against others.
Indiana to Exempt Civil Rights Protections in Religious Freedom Restoration Act by Dale Carpenter – Carpenter breaks down how Indiana’s amendments to the RFRA will work. Carpenter wrote:

Overall, if it passes and is signed, the amendment is a significant carve-out from the state RFRA, the first recognition by the state that sexual orientation and gender identity are matters of legitimate anti-discrimination concern, and an important first step toward a comprehensive anti-discrimination law in the state.

Common sense, a little respect about now might calm the religious waters by Barry Hankins – Hankins, an historian at Baylor University gives a good background on the RFRA controversy. In the end, the RFRA doesn’t guarantee discrimination against gays on religious grounds will prevail in court. According to Hankins:

It’s worth noting that New Mexico has an RFRA and a Human Rights Act that protects gay people. When a photographer there tried to use RFRA to refuse service at a gay commitment ceremony, she lost. The government showed successfully in court that there existed a compelling interest for the state’s anti-discrimination protections. That case has a lot to do with why Arizona, Arkansas and Indiana have now passed their own RFRAs.

Supporters in those states hope their RFRAs will be tougher than New Mexico’s. But be clear, RFRA laws do not give people the right to discriminate against gays. Rather, they say in part that if someone violates an anti-discrimination law on religious grounds, in a court proceeding the burden of proof will fall on the government to show a compelling interest for why the law should trump religious freedom.

The following articles seem less than helpful because they are either inaccurate or make conclusions which can’t be supported by the facts presented.

Intellectual Dishonesty is Winning Every Time by David Carlin – Dr. Carlin is depressed because things aren’t going his way. Carlin accuses the left of intellectual dishonesty when he engages in some of his own. Carlin said that the RFRA

…simply allowed religious believers not to be coerced by government into doing things forbidden by their conscience. Nothing more. Just the way we have always allowed Quakers and other conscientious objectors to refuse to participate in war. It wasn’t that we agreed with the pacifists; we did not. But we used to think that an honest conscience was such a precious thing that it should be respected even when erroneous.

Legal history is filled with decisions where an honest conscience has not been respected if the result is discrimination against a protected class. In some cases (the Quakers, the Amish), conscience has been respected, however in others (leaders of many Southern churches, business owners who want to pay women less than men) conscience has given way to a government interest in fair treatment of all citizens.
RFRA Not Like Jim Crow Laws at All by Jonah Goldberg – Goldberg may be correct that the RFRA is not like Jim Crow but he doesn’t help much by his simplified explanation of Jim Crow laws.  Goldberg argues that segregation laws were primarily economic constructions enforced by the government to forbid tolerant business owners from desegregating. He gives lip service to the pervasive segregation of the laws but then summarizes the situation:

Comparing RFRA laws to Jim Crow laws turns all of this on its head. Jim Crow laws forced tolerant businesses to be intolerant of blacks. No one, anywhere, is suggesting that people who want to do business with same-sex couples should be barred from doing so. The argument is whether the government should force a few ardent Christians (or Jews or Muslims) to participate in a ceremony that violates their faith.

While I think the RFRA law is not like a Jim Crow law, I don’t think Goldberg helps himself or his argument by misleading people about the pervasive nature of segregation in the post-Civil War South.