Hysterical Reaction to Indiana Law Is Destructive to Our System of Government
This article originally appeared in MarketWatch.
There must be something wrong with being from Indiana.
This is a state that has followed the example of 19 other states and the federal government in passing a Religious Freedom Restoration Act. Such laws have been around for more than 20 years and have never been found unconstitutional. Yet people are calling for a boycott of Indiana only. That makes no sense. If the law is so damaging, why not call for its repeal throughout America?
The federal RFRA of 1993 passed unanimously in the House and 97-3 in the Senate before it was signed into law by Bill Clinton. Because the federal law was found not to apply to the states, individual states followed, the latest being Indiana.
Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Virginia all have RFRAs. Barack Obama voted for Illinois’ RFRA while a member of the state Senate in 1998.
RFRAs say that the government may not substantially burden the exercise of religion unless doing so leads to furthering “a compelling governmental interest.” Those laws attempt to ensure that the government cannot lightly violate religious liberty.
Religious-freedom laws arose because of concerns that people with certain religious beliefs were being unfairly targeted by the law. The federal RFRA was a response to a case in Oregon in 1990, Employment Division v. Smith. The Supreme Court ruled that Alfred Smith and Galen Black could be denied unemployment benefits because they were dismissed due to taking peyote, even though it was consumed as part of a Native American Church observance. In the recent case involving Hobby Lobby, the Supreme Court ruled that religious employers did not have to provide abortifacient contraceptives to female employees. But religion seems to be out of fashion these days in many parts of the country that are decrying Indiana’s law.
Some say that Hoosiers will use the law not just to protect Native Americans who want to practice their religion but also to discriminate against gays. Hoosiers are surely not more racist than residents of other states. For consistency, there should be an equal concern that people in other states also might discriminate against gays.
Some states that have passed RFRAs, such as Connecticut, Illinois, New Mexico and Rhode Island, also have legislation that specifically bans discriminating against people based on sexual orientation. Indiana and 15 other states do not have such laws. Yet even in the absence of this law, there are no cases of Indiana businesses refusing to serve gays. While most of the members of the media have framed Indiana’s RFRA as anti-gay, no words concerning sexual orientation appear in the federal RFRA or in any state RFRAs.
It’s no coincidence that the First Amendment is devoted to the protection of religion. At the time of our country’s founding, immigrants were frequently fleeing religious persecution. Most other countries had a national religion. If people did not follow it, they could be severely punished or killed. Even today, people are given preference to immigrate to America if they are victims of religious persecution.
In addition to protecting individuals, Indiana’s RFRA also applies to companies and closely held corporations, as does the federal RFRA based on the Supreme Court’s decision in Hobby Lobby. It states that the government can “burden a person’s exercise of religion” if this “is in furtherance of a compelling governmental interest.” But there is a compelling interest in preventing discrimination. According to Politifact: “The courts have not approved exemptions to discriminate against gays under religious-freedom laws, and likely would not because the government has a compelling interest in protecting civil rights.”
The Federal Civil Rights Act gives all people the right to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.” Courts have since found that any refusal of service that does not serve a legitimate business reason is unlawful.
While businesses and individuals have every right to boycott in protest of laws that they do not agree with, the selective boycotts of Indiana that ignore the other 19 states with RFRAs are inconsistent, hypocritical and politically motivated. For example, Marc Benioff, the CEO of Salesforce, tweeted: “Today we are canceling all programs that require our customers/employees to travel to Indiana to face discrimination.” Yet Salesforce has offices in Illinois and Florida, which both have RFRAs. The company has a branch in China, where organs of prisoners are harvested and sold (a practice China has repeatedly promised to end), and political opponents are persecuted. How about canceling programs in Illinois, Florida and China, Mr. Benioff, and calling for an end to all the RFRAs, state and federal?
Even worse, boycotts organized by other states represent a potentially unconstitutional shakedown. This week, Washington state’s governor, Jay Inslee, Seattle Mayor Ed Murray and San Francisco Mayor Edwin Lee, all Democrats, banned government-funded travel to Indiana. Murray, who is openly gay, is also having his city offices look into their contracts to see if any contracted companies are headquartered in Indiana. On the other side of the country, Connecticut Gov. Dan Malloy, New York City Mayor Bill de Blasio and New York Gov. Andrew Cuomo, all Democrats, signed an executive order that also banned government-funded travel to Indiana.
While these bans may seem similar to Benioff’s, they may be legally problematic. One of the earliest Supreme Court cases, Gibbons v. Ogden in 1824, ruled that individual states were not allowed to grant monopolies that limited interstate commerce. That power was granted exclusively to the federal government. Since then, the Commerce Clause has been interpreted to cover anything that could affect commerce. Now ideologically driven states are trying to limit commerce with Indiana. Will these states next declare that they will not allow flights from Indiana to land at their airports, or they will not accept Hoosiers at their universities?
If allowed to go unchecked, large states, such as California, could use their power to limit interstate commerce with selected target states and intimidate them to bend to the political will of California officials. At what point do state-enacted travel bans become unconstitutional? When one state can threaten another, America loses.
Independent of whether the Indiana law is good policy, the reaction to it is chilling and destructive of our federalist system of government. With the enthusiastic support of the media, both states and private companies are behaving in a hypocritical manner and losing sight of the original purpose of the law.
Diana Furchtgott-Roth is the director of the Economics21 program at the Manhattan Institute for Policy Research. You can follow her on Twitter here.
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