Garret Epps of The Atlantic, who has already done some of the best work making sense of the details of various “religious liberty” laws, offers some good advice on how to evaluate the new-and-improved law Indiana Republican legislators are unveiling this morning:
[W]hen the “fix” is finally unveiled, read it carefully. And for a crash course in what shouldn’t be there, look at the Arkansas religious-freedom bill that Gov. Hutchinson refused to sign on Wednesday. This bill makes the Indiana law look like the Universal Declaration of Human Rights. It begins with this reassuring finding: “It is a compelling governmental interest to comply with federal civil-rights law.” But consider that federal civil-rights laws currently do not protect against discrimination by sexual orientation; the “finding” is not part of the actual statute; and, most importantly, the Arkansas legislature does not have and never has had the slightest power to set aside or reduce the scope of any federal law. It’s as generous as a “finding” that “in Arkansas, light is given permission to travel at 186,000 miles per second.”
The actual binding language of the statute, meanwhile, seems to apply to even more for-profit businesses than the Indiana statute, and it applies to private actions. It also tells the state courts to assess claims for exemption by a significantly different standard than that used in the federal law. To overcome a claim for exemption under the Arkansas law, the government must show that any “burden” on free exercise placed upon a person or business is “essential to further a compelling governmental interest”; the federal statute simply says “in furtherance” of a compelling interest. Lawyers and judges pay close attention to wording shifts like that. The tightening language could shift a result in favor of a religious claim by a business.
The harshness of that standard is underlined in an ominous final section, which provides that “there is not a higher protection offered by the state than the protection of a person’s right to religious freedom.”
If there is no right more protected than “religious freedom,” then no “burden”— and certainly not any “burden” imposed by a local statute that forbids discrimination in employment, housing, or public accommodation—can ever be “essential” enough to override a claim for religious exemption.
That’s not circumstantial evidence of discriminatory intent; that is a smoking gun.
What’s already happened thanks to developments in Indiana and Arkansas–and to some extent in Georgia, where sponsors of a “religious liberty” bill yanked it from consideration when it was amended to include assurances like those now being promoted in the other two states–is that the original “everybody’s doing it” and “nothing to see here” defenses for enacting these bills has crumbled. Nobody’s buying the claims that they are all the same or that they add little to laws supported by Bill Clinton and Barack Obama in the past. So the moment for an unthinking state legislative landslide on this topic has come and gone.
It is ironic that conservatives who are forever demanding that everybody read every line of complex legislation like the Affordable Care Act are trying to obfuscate their intent in this particular area. The great symbol of the whole fiasco was Mike Pence’s signing ceremony for the bill he now wants amended, in which a select group of clergy and religious and professional homophobes were invited in for an official picture with the Guv while the media and the public were banned. This idea here was a quiet pander for a Republican constituency group. And now people are reading and debating the language of the bills; indeed, some of Pence’s opponents are determined to reverse the arrows and make this the occasion for enactment of Indiana’s first non-discrimination law protecting LGBT folk. So Pence and company have already lost, however much they succeed in mitigating the damage and hoping the controversy refocuses on other states.