Just one day after Indiana Gov. Mike Pence (R) signed a law that’s widely expected to give anti-gay businesses a license to discriminate, two of the state’s top Republicans are already backing away from the law. At a joint press conference held by Indiana Senate President Pro Tem David Long (R) and House Speaker Brian Bosma (R), both men said that they will “encourage our colleagues to adopt a clarifying measure of some sort to remove” the impression that the bill authorizes discrimination. It remains to be seen what, exactly, this “clarifying measure” will say, and if it will actually remove the bill’s protections for anti-gay business owners.
If Long and Bosma are serious about achieving this goal, they can start by following the lead of a well-known Republican — former President George W. Bush.
In 1999, Texas considered legislation similar to the “religious liberty” bill Pence signed into law on Sunday. Unlike Indiana’s law, however, the bill Bush signed when he was Texas’s governor includes explicit language ensuring that people with strong religious views are not exempt from anti-discrimination law. Texas’s law provides that, with narrow exceptions, it “does not establish or eliminate a defense to a civil action or criminal prosecution under a federal or state civil rights law.”
Inserting this exact language into the Indiana law would not cure all of its problems, in part because the Texas language does not explicitly provide that anti-gay businesses are bound by civil rights ordinances enacted by cities and other local governments. To remove the possibility that Indiana’s new law will permit discrimination, the state must amend its law to permit cities like Indianapolis to enact gay rights measures that cannot be trumped by state law. Nevertheless, the fact that Texas included language protecting anti-discrimination laws when its religious liberty bill became law in 1999 — and the fact that Indiana lawmakers did not include similar language — reflects just how drastically the politics of religion and civil rights have changed in the last 16 years.
A Brief History of “Religious Liberty”
Both Texas’s and Indiana’s law are modeled after the federal Religious Freedom Restoration Act (RFRA), although many of the Indiana law’s provisions are written more broadly than federal RFRA. Prior to 1990, the Supreme Court interpreted the Constitution to provide everyone subject to U.S. law with robust religious liberties, so long as those liberties were not used to disparage the rights of others. In Employment Division v. Smith, however, the Supreme Court drastically reduced the scope of religious freedom under the Constitution. Federal RFRA was enacted in 1993 to overrule Smith and return American religious liberty law to its pre-1990 state.
As originally drafted, RFRA was supposed to apply equally to both the states and the federal government — so neither were permitted to restrict an individual’s ability to exercise their faith in a way that was not permitted under pre-Smith law. In the 1997 case City of Boerne v. Flores, however, the Supreme Court held Congress could not constitutionally apply RFRA to the states. Under City of Boerne, if states wanted to offer pre-Smith levels of religious liberty protections to their citizens, they would have to enact their own law providing as much.
This was the context that led Texas to consider its own version of RFRA in 1999. One advocate who opposed enacting such a law in Texas was Marci Hamilton, the law professor who successfully litigated City of Boerne. As Professor Hamilton explained in a 2000 op-ed recounting her role in helping shape Texas’s RFRA law, she argued that “one must wonder about Bush’s position on children’s rights, land use planning, prison administration, and human rights if he was going to introduce a ‘pure’ RFRA that would allow religious entities and individuals to challenge virtually every law.”
After Hamilton and others raised concerns that an unqualified religious liberty law would reach too far, however, Texas lawmakers actually listened to these concerns. The result was that “Land use laws were exempted, human rights laws were exempted, and prisons were given the benefit of the doubt under the statute.” Although Bush was pressured by advocates for an unqualified RFRA bill to veto this compromise, “he did not kowtow to pressure from the Coalition and others. Instead, he signed a compromise RFRA into law.”
So that’s how a conservative future president came to sign a law providing that religious liberty cannot trump anti-discrimination laws in one of the reddest states in the nation.
The Hobby Lobby Bait-and-Switch
Bush’s willingness to strike a balance between religious liberties and other civil rights may seem surprising, but it shouldn’t be to people who are familiar with how the politics of RFRA shifted in the last five or six years. When RFRA became law, and, indeed, until very recently, the law of religious liberty was bound by a simple principle: one person’s religious freedom stops at another person’s rights. This principle was especially strong in the business context. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
In 2014, however, the Supreme Court effectively scrapped this principle in Burwell v. Hobby Lobby, the case holding that employers with religious objections to birth control could refuse to comply with federal rules requiring them to include contraception in their employees’ health plans. Thanks to Hobby Lobby, religious objections may now be raised, at least at the federal level, to diminish the rights of others.
Hobby Lobby did not happen overnight, however, and it is only one prong of a much larger effort by Christian conservatives to carve themselves out of a moral and legal culture they increasingly view as out of touch with their values. In 2009, an influential list of religious conservatives — including several leading Catholic bishops, similarly prominent clergy of other sects, and the leaders of several top anti-gay groups — signed a document known as the “Manhattan Declaration” which pledged not to “bend to any rule purporting to force us to bless immoral sexual partnerships [or] treat them as marriages or the equivalent.” Open defiance was their solution to a nation that was rapidly embracing equality.
In 2014, when Hobby Lobby was still pending before the Supreme Court, the influential social conservative writer Ross Douthat offered an alternative to this brand of defiance. Rather than simply refusing to obey the law, social conservatives would “negotiate surrender” with the growing majority of Americans who support gay rights. The terms of this so-called “surrender,” however, look a lot like how life under Indiana’s law would look if the law is given the most expansive possible reading:
In this scenario, religious conservatives would essentially be left to promote their view of wedlock within their own institutions, as a kind of dissenting subculture emphasizing gender differences and procreation, while the wider culture declares that love and commitment are enough to make a marriage. And where conflicts arise — in a case where, say, a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding — gay rights supporters would heed the advice of gay marriage’s intellectual progenitor, Andrew Sullivan, and let the dissenters opt out “in the name of their freedom — and ours.”
In 1999, in other words, religious liberty was widely understood to be limited by the rights of others — and the idea that an appeal to religion could be used to overcome an anti-discrimination law was rejected even by George W. Bush. In 2015, by contrast, social conservatives are openly striving for a world where they can opt out of civil rights law that they object to on religious grounds.
Indeed, some lawmakers have been quite explicit about the fact that this is their goal. Around the same time that Indiana’s new law was making its way toward Pence’s desk, the Georgia legislature considered a similar law. During debate on the bill, Rep. Mike Jacobs, a Republican who supports gay rights, introduced an amendment explicitly providing that the Georgia bill could not be used to overcome anti-discrimination provisions at the state and local level. The amendment was staunchly opposed by the bill’s sponsor, who complained that protecting victims of discrimination would “completely undercut the purpose of the bill.”