Religious Freedom Restoration Act: A Time for Testing

First Things editor R.R. Reno:

We’re in a moment of mass hysteria, one that vindicates Indiana Governor Mike Pence’s decision to sign his state’s Religious Freedom Restoration Act (RFRA). This law establishes a strong standard for religious liberty: A person’s free exercise of religious can be “substantially burdened” by a law only if that law advances a “compelling government interest” in a way that involves “the least restrictive means.”

It was immediately denounced as an unprecedented assault on gay rights. Apple CEO Tim Cook described the law as part of “something very dangerous” that “would allow people to discriminate against their neighbors.” Many others have joined the frenzy. Gays aren’t going to be served at restaurants! They won’t be allowed into hotels!

What world is Tim Cook living in? At present, Indiana has no legislation prohibiting discrimination on the basis of sexual orientation or gender identity. As a result, no matter what one thinks of the recently passed RFRA, when it comes to gay rights this legislation does absolutely nothing to allow people to do things they’re not already allowed to do.

And what were people doing? At this point nobody has identified any pattern of discrimination in Indiana that, somehow, this legislation will empower. No gay person has complained of being denied a hotel room. None have reported being denied service at a restaurant. Gays and lesbians are not prohibited from voting or holding public office. Nobody is lobbying to prevent Elton John from performing in Indiana. There are no reports of discrimination in hiring.

But today is beside the point. Let me repeat that: Today is beside the point. The controversy in Indiana is about the future.

Christian conservatives in Indiana pressed for a RFRA because they anticipate the establishment of a thoroughgoing gay rights regime in America. The Supreme Court is very likely to find a right to gay marriage in the Constitution. Moreover, the reasoning used to justify the discovery of this right is only too likely move along lines that equate any objection to same-sex marriage with bigotry.

This is what I call the Selma Analogy. 

READ THE REST.