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The Misdirected Furor In Indiana

Mike Pence, waving, and Karen Pence at a St. Patrick's Day parade
Ind. Gov. Mike Pence. Photo by Steve Baker

If you lose a legal or political debate on a particular subject, a smart – if cynical – maneuver is to pretend to talk about something else, while actually re-fighting the battle you lost.

This is the best way to understand the firestorm over a new Indiana statute that is being blasted as an assault on same-sex marriage, but which really has very little to do with gay rights. So little, in fact, that there has been practically no controversy over similar laws that are already on the books in 19 states other than Indiana, and at the federal level, too.

Gov. Mike Pence set off the argument last week when he signed his state’s Religious Freedom Restoration Act into law. Individuals and celebrities with ties to Indiana – and many more without – spoke out against the law and the state’s lawmakers. Businesses and organizations, including Angie’s List, Salesforce, the NCAA and the organizers of several conventions, have expressed concern or threatened to boycott the state over the law.

Pence and his team were clearly blindsided. Pence told The Indianapolis Star, “I just can’t account for the hostility that’s been directed at our state.” In a press conference yesterday afternoon, the governor said he will support legislation introduced to clarify that the law does not promote discrimination. Pence said of such legislative clarification: “I think it would be helpful, and I’d like to see on my desk before the end of the week, legislation that is added to the Religious Freedom Restoration Act in Indiana that makes it clear that this law does not give businesses the right to deny services to anyone.”

Indiana’s law codifies a widely accepted legal principle, which is that freedom of religion – like freedom of speech – is a fundamental right that can be curtailed only when the government has a compelling interest that cannot be satisfied in some less-restrictive manner. We live with this principle every day, usually without giving it a second thought.

For example, the Civil Rights Act of 1964 prohibits discrimination on the basis of race, sex or religion, among other categories. An owner of a restaurant or an apartment house who refuses to serve a religiously mixed couple, on grounds that his faith opposes such unions, would not have a legal leg to stand on; the government can show that it has a compelling interest in making housing and public accommodation open to all citizens without religious discrimination. Yet the Civil Rights Act has not been read to require that a particular priest or rabbi must perform a wedding ceremony for such a couple. The government has a less-restrictive way of enabling the couple to get married, namely via a civil ceremony; it therefore need not and cannot dictate how a religious minister performs clerical duties. Likewise, the Civil Rights Act has not been read to require that the Roman Catholic Church employ Jewish or female priests.

These principles were not changed when the federal version of the Religious Freedom Restoration Act was signed into law over 20 years ago. Indiana’s new law won’t change them, either, for gay couples any more than for racially or religiously mixed ones. Despite the hopes of some of the law’s supporters, who see it as a way to protect businesses from participating in same-sex marriages with which they disagree, the law is not designed to enable bigotry. In other states, attempts to use similar laws to justify such discrimination have not worked.

Despite all the shouting about gay rights, Indiana’s law is actually about something quite different: birth control.

More accurately, it is about the ramifications of Hobby Lobby’s stance on birth control, the crux of the case in which the Supreme Court ruled last year on whether closely held corporations can be required to include contraception coverage in their employee health insurance plans. The federal government contended that owners of for-profit businesses cannot assert religious principles as a defense against what they see as government intrusion on their First Amendment rights; the Court ruled in favor of Hobby Lobby and another company with similar objections, Conestoga Wood Specialties Corp. The ruling was based on the federal religious freedom law, because courts (including the Supreme Court) generally prefer not to rule on constitutional issues if a valid statute addresses the issue at hand.

In light of the Hobby Lobby decision, lawmakers in Indiana - and elsewhere - may wish to create a similar legal framework to allow for similar results, because an earlier Supreme Court case held that the federal law does not apply to actions by state governments. Indeed, Pence explicitly cited Hobby Lobby when he argued in support of Indiana’s religious freedom law.

For another example of how these principles work in practice, consider Boy Scouts of America v. Dale. In that case, decided in 2000, the Supreme Court ruled that the Boy Scouts of America had the right to exclude someone (in this case, a gay scoutmaster) from membership when “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” You might think the organization’s position was deplorable; I certainly do. But it is their organization, and the Court found that it had the right to determine who could be associated with it. This holding did not prevent the Supreme Court from later finding in favor of gay rights in critical cases including Lawrence v. Texas, striking down state bans on homosexual activity in 2003, and United States v. Windsor, overturning the federal elements of the Defense of Marriage Act in 2013. And it is not likely to be a factor if, as expected, the Court issues a broader ruling on same-sex marriage later this year.

So why all the uproar in Indiana? Partly it is due to the symbolism of enacting this law at this moment, when it seems gay rights in general, and same-sex marriage in particular, are on the verge of achieving universal acceptance legally, if not yet socially. The fact that some of the Indiana law’s supporters were the same people resisting same-sex marriage rights in the state made it easy for the law’s opponents to frame the debate in those terms.

But mostly the furor is due to the Internet echo chamber and the strain of anti-business thought that believes that when we organize our activities in order to make a profit, we sacrifice core rights such as freedom of speech or religion. These positions have been soundly rejected by the courts, in Citizens United and the Hobby Lobby case, among others.

In the real world, the government will have no problem protecting gay families from housing or employment discrimination, just as it has no problem protecting racially or religiously mixed couples now. It can easily demonstrate a compelling interest in doing so.

But if the government wants to provide birth control coverage to workers, it can do so itself. It does not need to force businesses like Hobby Lobby to provide such coverage to their employees in spite of their owners’ religious beliefs. For-profit business owners, like nonprofit organizations and ordinary citizens, have fundamental rights that the government cannot violate for its own convenience. State-level religious freedom laws simply codify this basic American principle.

The hubbub over Indiana’s law is not truly much ado about nothing, but it is much ado about the wrong thing. The controversy will likely blow over when everybody eventually realizes as much.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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