The state of Indiana last week enacted a law to protect religious freedom, and a firestorm of protest erupted, even though most states and the federal government have had parallel laws for many years.

Opponents of the Religious Freedom Restoration Act insist, however, that the law injures the cause of equality for gays and lesbians. Nancy Pelosi and Stuart Milk wrote in the Huffington Post that the law “discriminates” and returns us to the time when segregation was legal. And they mean that bit about segregation literally: “Today we will no longer be able to break bread together in Indiana if a proprietor turns us away under this new law.”

That accusation is totally and completely false.

As it happens, Indiana state law does not now include “sexual orientation” in its list of prohibited bases for discrimination. Neither, for that matter, does federal law — something that Nancy Pelosi and President Barack Obama evidently did not think it sufficiently important to change, when the Democrats had full control of the national government.

Passage of the state religious freedom law does not alter that.

Hypothetically, a business owner in Indiana could discriminate in the way they imagine — with or without RFRA. But they cite no actual instances of such extreme discrimination. If there were any to cite, there would be a national outcry that would dwarf the one we are seeing now about wildly hypothetical injuries.

Here’s what RFRA actually does. It says that, if a generally applicable law substantially burdens someone’s right to exercise their religion, then the person should be left free to follow their religious beliefs, unless the law serves a “compelling” purpose, and that purpose can be accomplished in no other, less restrictive way.

The idea is that, in a big and diverse society, we generally should let people alone to live according to their principles, unless there is some really strong reason why we must compel them to act differently.

Opponents of the Indiana RFRA object that it protects some for-profit businesses and enables religious persons to claim its protection against other individuals and businesses — but the courts have read those same guarantees into the federal law, and no horrible consequences have arisen.

Prior to 1990, the Supreme Court held that the Constitution required this level of protection, but in a 5-4 decision authored by Justice Antonin Scalia (who is himself both conservative and a Roman Catholic), the court held that the Constitution only protects believers against laws directly targeted against religious practice or belief.

The reaction to Scalia’s opinion was almost uniformly hostile, and that’s why the law Congress enacted in 1993 was called the Religious Freedom Restoration Act — it restored the law to where it was before 1990. A 1997 Supreme Court decision held that the federal RFRA did not apply to the state governments, and since then many states have expanded their protection for religious freedom, either by adopting state laws, or by interpretations of the religious liberty guarantees in their state constitutions.

In the last few years, as gay marriage has become the norm in more states, new conflicts have begun to arise between traditional religious believers and state anti-discrimination laws. For example, in Oregon, a baker faces a fine for not wanting to bake a wedding cake for a same-sex couple, and the government of New Mexico took action against a religious wedding photographer, who objected to working at a same-sex wedding.

Many conservatives and some liberals think that such wedding-service providers should not be coerced into participating in same-sex weddings; many liberals think that commitment to equality requires such coercion, though the dissenters seem to be few and the supply of willing providers ample.

It would be nice to see our society have a thoughtful and principled discussion about whether coercion is necessary and warranted in those circumstances, but thus far there’s no evidence that it is going to happen.

In any case, neither the Indiana RFRA nor any other version of that law is likely either to harm gays or, if you prefer, help the traditionalists.

Here’s what the opponents of the Indiana law either don’t know or refuse to say. Thus far, everyone who has asserted a religious reason for not working at a gay wedding has lost. Every one.

Since no one has cited, or can cite, any actual harm these laws have caused — to gays or to anyone else — and they protect freedom and diversity, one has to ask: Where is all the animus coming from?

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


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