RFRA Flip-Flop

The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.

RFRA Flip-Flop
The Religious Freedom Restoration Act (RFRA) of 1993 was passed, with broad bipartisan support, by a Democratic Congress and signed enthusiastically by President Clinton. In 1998 the Illinois Senate passed the state’s own version of RFRA, 56-0, with Sen. Barack Obama not just present but voting “yes.” Connecticut had enacted a RFRA in June 1993, even before the federal government did. As the Washington Post reports, a total of 19 states passed RFRA laws before Indiana did, usually with little controversy.

Yet the left is enraged at Indiana. “Sad this new Indiana law can happen in America today,” tweets Hillary Clinton, Bill’s better half. “We shouldn’t discriminate against ppl bc of who they love.” The Hill reports that the White House – now occupied by that erstwhile Illinois state senator – “on Tuesday blasted Indiana’s religious freedom law.”

And in the Nutmeg State, the Associated Press reports that “Gov. Dannel Malloy signed an executive order on Monday barring state spending on travel to Indiana,” including public university sports teams. Which raises two questions: First, doesn’t such a boycott amount to an unconstitutional restraint on interstate commerce, which only Congress has the authority to regulate? Second, to be consistent, will Malloy boycott his own state as well?

What’s going on? How did bipartisan piety for what President Clinton in 1993 called “the first freedom” turn into World War III? It’s the left’s biggest flip-flop since . . . well, Vyacheslav Molotov in World War II.

It’s not because of subtle differences between the Indiana law and its predecessors. Washington Post “fact checker” Glenn Kessler quibbles at great length with Gov. Mike Pence’s assertion that the law he signed is “the same” as the one Obama backed 17 years ago. In the end Kessler musters only one Pinocchio, based on two subtle distinctions: First, whereas in Illinois a party must show that his religious freedom “has been” substantially burdened, in Indiana it suffices that it is “likely to be” so burdened; second, while the Indiana law applies in private lawsuits, the Illinois law is silent on that question. (So is the federal RFRA, which, as The Wall Street Journal notes today, has yielded an interpretive split among the appellate courts.)

Meanwhile, the Federalist’s Sean Davis points out that the Connecticut law is even stronger than the federal, Illinois and Indiana ones, inasmuch as it does not include the qualification that religious freedom must be substantially burdened. If Malloy is consistent—a big “if”—UConn will be forfeiting its home games until lawmakers in Hartford act.

But again, legal hairsplitting is at most a pretext for the fury directed against Indiana. Here we will take the unusual step of praising the New York Times editorial board for forthrightness. In a single sentence, if a lengthy one, the paper sums up what changed: “Religious-freedom laws, which were originally intended to protect religious minorities from burdensome laws or regulations, have become increasingly invoked by conservative Christian groups as gay rights in general—and marriage equality in particular—found greater acceptance nationally.”

Narrowly speaking, that is, the left’s hatred of RFRA is about preserving the authority of the cake police – government agencies determined to coerce bakeries, photo studios, florists and other small businesses to participate in same-sex weddings even if the owners have eccentric conscientious objections.

Whether Indiana’s RFRA would protect such objectors is an open question: The law only sets forth the standard by which state judges would adjudicate their claims. Further, as the Human Rights Campaign, a gay-rights group, notes, the Hoosier State has no state laws prohibiting private entities from discriminating on the basis of sexual orientation. (It does have same-sex marriage, pursuant to a federal court ruling.) There are also no such antidiscrimination laws at the federal level. Thus under current law, only certain cities and counties in Indiana even have a cake police.

What makes that Times editorial surprising is the frank admission that the editors are unwilling to apply their principles to the religious group they disfavor, namely “conservative Christian groups.” That’s not to say their candor is untarnished by bad faith. They set up a dichotomy between “religious minorities” and “conservative Christian groups.” But unless the old Moral Majority was – and still is – worthy of the latter half of its name, the dichotomy is self-evidently a false one.

It is also an invidious one, since it singles out one religious minority (or, to be precise, one category thereof, since there are many kinds of conservative Christians) and deems it unworthy of the first freedom. And that supposed unworthiness is not limited to the matter of same-sex marriage, or gay rights more generally. The Times once again rebukes the Supreme Court for having “helped the cause of Christian conservatives with its 2014 Hobby Lobby decision,” which held that RFRA limited the government’s coercive authority vis-à-vis the provision of contraceptives through employee medical benefits.

You might sum up the Times’s position as follows: Legal rights are all well and good, but they shouldn’t be extended to an enemy in wartime—at least not if it’s a culture war.

Ross Douthat, a conservative Times columnist, seems unsympathetic to that view yet resigned to its triumph (he writes in the past tense because he’s paraphrasing an earlier piece):

The only remaining question in the same-sex marriage “debate” was what kind of space, if any, an ascendant cultural liberalism would leave to Americans with traditional views on what constitutes a marriage; that the correlation of forces (corporate now as well as cultural and legal) was such that the choice of exactly how far to push and how much pluralism to permit would be almost entirely in the hands of liberals and supporters of same-sex marriage.

Pence’s handling of the controversy certainly supports the Douthat analysis. “I stand by this law, but I understand that the way that some on the left and frankly, some in the national media have mischaracterized this law over the last week might make it necessary for us to clarify the law through [further] legislation,” Politico quotes him as saying this morning in a Fox News interview. In a Wall Street Journal op-ed, he disavows any discriminatory intent:

I abhor discrimination. I believe in the Golden Rule that you should “do unto others as you would have them do unto you.” If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore. As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.

That’s all accurate and unobjectionable, but it’s also awfully defensive. We’re not sure we accept Douthat’s defeatism; it seems to us that religious freedom is a powerful enough principle to have a chance of overcoming “an ascendant cultural liberalism.” But that would require some politician to have the courage to speak on behalf of the cake police’s targets, however unpopular – even wrongheaded – their views may be.

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