Friday, March 29, 2024

Indiana Attacked Over ‘Anti-Gay’ Law Most States Also Have

Indiana Sticker
Indiana Sticker

WASHINGTON, D.C.  – Indiana and its governor are being furiously but needlessly attacked, and even threatened with boycotts and other hardships, over a new law which critics incorrectly claim authorizes discrimination against gays.

But a similar federal law has been in effect since 1993, and in a great majority of states there are similar protections for religious freedom, notes public interest law professor John Banzhaf, who opposes such laws, and wonders why they haven’t been fought in all of the other states in which they are now in effect.

If Indiana is only the latest of more than thirty states which have now adopted this same protection, why is that one state and its governor being singled out for condemnation, boycotts, and other measures, he asks, suspecting that the answer may be ignorance of how widespread such laws are, and serious misunderstandings about how they work.

The federal Religious Freedom Restoration Act [RFRA] was signed into law in 1993 by then-president Bill Clinton after being adopted overwhelmingly 97-3 by the U.S. Senate.

After the Supreme Court in 1997 held that this federal statue generally provided no protection against state laws, some 20 states – blue as well as red – adopted similar statutes, and another 13 have the same protections for religious freedom as a result of court rulings.

Despite the claims of discrimination against gays, “no business has been given the right to discriminate against gay customers, or anyone else,” in the decades these laws have been effect, says Stanford law professor Michael McConnell.  Rather many of the cases have involved other and diverse issues, including funeral rituals, Amish buggies, etc.).

None of these laws automatically establish a right to discriminate against any group, explains Banzhaf.

Rather they permit individuals and businesses to challenge laws and regulations which allegedly impose substantial burdens on their religious freedom.

Once challenged in court, they will be upheld only if the government can meet the heavy burden of proving that they were adopted in furtherance of a legitimate governmental interest which is “compelling,” and are the “least restrictive means” of furthering that compelling governmental interest.

Since that dual test is often very difficult to meet, it means that anyone who can show that they have a genuine religious-type belief about anything the government tries to regulate to protect public health, safety,  etc., can force the government to prove that its purpose is overwhelmingly important, and cannot be achieved by any less intrusive means – or the government must abandon efforts to enforce it.

Thus, it could apply to – and in some states might even thwart – mandatory vaccination-for-children statutes, enforcing laws against sex discrimination on municipal buses, state colleges refusing to have female-only gym time to accommodate Muslims, access to mind-altering drugs including marijuana, and in many other situation.

Thus, suggests Banzhaf, these laws may go too far – further than the Constitutional separation of church and state require, according to the Supreme Court – and give too much protection to any religious-type belief any person might claim to hold, even if it hinders important laws or regulations relating to public safety or health, anti-discrimination, etc.

For these reasons, while such RFRA laws may be too far reaching, and provide more protection than is necessary to many varied religious beliefs, it makes little sense to fight only the law in Indiana, and to fight it on the largely specious ground that it is an anti-gay law, says Banzhaf, who has fought against many different kinds of discrimination, including that based upon sexual orientation.

john banzhaf
John Banzhaf

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW Washington, DC 20052, USA (202) 994-7229 // (703) 527-8418 https://banzhaf.net/ @profbanzhaf

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