Media Misleadingly Compare Anti-LGBT Indiana Law With Federal And State Religious Freedom Laws

››› ››› SOPHIA TESFAYE & CAL COLGAN

Media outlets have argued that Indiana's new Religious Freedom Restoration Act (RFRA) mirrors RFRAs passed in other states as well as the federal RFRA signed into law in 1993 by then-President Bill Clinton. In fact, Indiana's RFRA is broader than other versions of the law, and experts say it could allow private businesses to discriminate against LGBT customers on the basis of religion.

Indiana Governor Signs Religious Freedom Restoration Act Into Law

BBC News: "Indiana Boycott Urged After 'Religious Freedom' Law Passes." On March 26, Indiana Republican Gov. Mike Pence signed the Religious Freedom Restoration Act into law, prompting criticism from activists who claim that the law discriminates against LGBT people. [BBC, 3/27/15]

Right-Wing Media Rush To Defend Indiana's Law, Claiming It Mirrors Federal Law

Fox's Megyn Kelly: "19 States In The Union Have Similar Laws, There's A Federal Law That Looks Just Like This." On the March 30 edition of The Kelly File, host Megyn Kelly and her guest, Family Research Council president Tony Perkins, defended Indiana's RFRA as reasonable legislation, misrepresenting it as non-discriminatory and similar to previous "religious freedom" laws passed by Congress and state legislatures. During the segment, Kelly claimed that Indiana's law doesn't allow for discrimination and is no different than other versions of RFRA. [Fox News, The Kelly File, 3/30/15 via Media Matters]

Fox's Gretchen Carlson: "When You Hear This Debate, You Don't Learn That 19 Other States Have A Law [RFRA] On The Books." In a March 25 segment on The Real Story, host Gretchen Carlson and her guests dismissed concerns that Indiana's RFRA will provide legal protections to individuals and business owners who discriminate against LGBT customers. Carlson agreed with her guest, conservative blogger Crystal Wright, that there was nothing "controversial" about Indiana's law because it was no different than the federal RFRA that was signed in 1993. [Fox News, The Real Story, 3/26/15 via Media Matters]

Fox Contributor Cal Thomas: Media Biased On Indiana Law That Merely Mirrors The Federal RFRA. On the March 30 edition of FoxNews.com's Bias Bash, Fox contributor Cal Thomas claimed that the "big media don't mention" that Indiana's RFRA is "strikingly similar" to the federal RFRA. Thomas said the law merely reinforces "the right of religious people to serve whom they wish," and likened Indiana's RFRA to a business putting up a sign that says they can refuse service to anyone:

You know, what the big media don't mention is the measure signed by Governor Pence is strikingly similar to the Religious Freedom Restoration Act, passed more than two decades ago by a bipartisan congressional majority and signed into law by then-President Bill Clinton. The Indiana law does nothing more than reinforce the right of religious people to serve whom they wish, unless government has a compelling interest and can prove it. In that, they are no different from the restaurant that has a sign that says, "We reserve the right to refuse service to anyone." That might include men without jackets or women dressed in ways deemed inappropriate by the owner.  [FoxNews.com, Bias Bash, 3/30/15]

Fox's Harris Faulkner: The RFRA Signed By Bill Clinton "Looks Very Much Like The One In Indiana." On the March 30 edition of Fox News' Outnumbered, co-host Harris Faulkner claimed that the Indiana law "inherently means" that businesses cannot discriminate against LGBT customers, and that the federal RFRA "looks very much like the one in Indiana." [Fox News, Outnumbered3/30/15]

Fox's Andrea Tantaros: This Law Is "Similar" To The Federal One Signed By Bill Clinton. On the March 31 edition of Fox News' Outnumbered, co-host Andrea Tantaros claimed that "there is a similar law on the federal level" to Indiana's RFRA, that was "signed by Bill Clinton." She went on to argue that Indiana's law does not discriminate against LGBT people, but rather it ensures "that people who have religious beliefs are not treated like second-class citizens."

TANTAROS: This law was designed -- and there is a similar law on the federal level, signed by Bill Clinton -- and it was done not so that gays are treated like second-class citizens, but so that people who have religious beliefs are not treated like second-class citizens. And the way that this is progressing, it's really ugly, as Melissa mentioned. I mean, some of these gay rights activists are coming across as bullies, and I say that as somebody who believes in gay rights. I mean, this was supposed to be a movement based on tolerance and freedom, and it is starting to get really ugly, and they're looking at religious people and not being tolerant to them. And this is not a one-way street.  [Fox News, Outnumbered, 3/31/15]

Hugh Hewitt Equates Indiana's Anti-LGBT Discrimination Law To Federal Law. On March 30, right-wing radio host Hugh Hewitt hosted potential 2016 presidential contender Jeb Bush to praise the recently passed Indiana law. Hewitt pointed to the federal RFRA to push back on claims that the law will encourage anti-LGBT discrimination. In the interview, Hewitt claimed that "the Religious Freedom Restoration Act was signed in 1993. It's been the law in the District of Columbia for 22 years. I do not know of a single incident of" the law being used as an excuse to discriminate "in the District in the last 22 years." [Salem Radio Network, Hugh Hewitt Show3/30/15 via Media Matters]

Laura Ingraham: The Law Signed By Bill Clinton Was The Same As Indiana's Religious Freedom Law. On the March 30 edition of The Laura Ingraham Show, host Laura Ingraham said that Indiana's law basically mimics "the federal statute," and that she didn't think "any of us would believe that Bill Clinton and Al Gore would sign a piece of legislation that they believed countenanced discrimination against a protected class of people. I don't see how anyone would conclude that."  [Courtside Entertainment Group, The Laura Ingraham Show3/30/15]

Mainstream Media Follow Right-Wing Media's Misguided Representation Of Indiana's Anti-LGBT Law

Wash. Post's Ruth Marcus On MSNBC: Indiana Law "Is The Same" As Federal RFRA. Appearing on MSNBC's Andrea Mitchell ReportsThe Washington Post's Ruth Marcus said she was "sympathetic to Indiana," since it's getting "dinged for passing a law that lots of other people already have." Marcus also falsely asserted that Indiana's law "is the same as a federal law that's been on the books for decades."  

MARCUS: In one sense, I feel a little sympathetic to Indiana. And before everyone gets worked up, let me explain why. Which is, this law that was passed in Indiana, as I understand it, is the same as a federal law that's been on the books for decades, in response -- but it was passed before the real issue was questions of civil rights and anti-discrimination protections for gays, and in particular -- when same-sex marriage seemed some bizarre thing. So, Indiana is getting dinged for passing a law that lots of other people already have, because the context is different. [MSNBC, Andrea Mitchell Reports3/30/15]

Wash. Post's The Fix: Federal RFRA "Shares Language With Indiana And Other States' Bills." In an article titled "19 states that have 'religious freedom' laws like Indiana's that no one is boycotting," the Post's Hunter Schwartz conflated Indiana's RFRA with the more narrow versions found in other states, and claimed that laws like Indiana's are "widespread":  

Forty percent of U.S. states have something similar to Indiana, as does the federal government.

A federal RFRA signed by President Clinton in 1993 shares language with Indiana and other states' bills, prohibiting the government from "substantially burdening" individuals' exercise of religion unless it is for a "compelling government interest" and is doing so in the least restrictive means. [The Washington Post, The Fix, 3/27/15]

MSNBC's Joe Scarborough: If You Don't Like RFRAs, "Go After Bill Clinton. Go After Barack Obama" On the March 31 edition of Morning Joe on MSNBC, host Joe Scarborough declared that "20 states in 2015 have these laws in place." He added that instead of asking why Indiana lawmakers were "haters," objectors should "go after Bill Clinton [and] go after Barack Obama."

SCARBOROUGH: 20 states in 2015 have these laws in place, Willy. Again, I'm not saying that makes it right. I'm just saying everybody is freaked out and people that don't even know the law are coming up to me saying, "why are they such haters in Indiana?" Well, this, go after Bill Clinton, go after Barack Obama. And also, in 2015, there are all these other states. So, yes, if this is bigoted, then there are 20 states now that are bigoted. [MSNBC, Morning Joe3/31/15]

But Indiana's Law Is More Expansive Than The Federal And Nearly All State RFRA Laws

The American Civil Liberties Union Of Indiana: Indiana's Law Is "Virtually Without Precedent." According to the ACLU of Indiana, the state's RFRA is written much more broadly than the federal version, because it allows "basically anyone" to use religious freedom as a defense in court:

Unfortunately, the Indiana law is written more broadly than the federal Religious Freedom Restoration Act of 1993. For instance, a critical difference is that SB 101 would allow for-profit businesses, employees and individuals -- basically anyone -- to assert a legal claim or defense of free exercise of religion in a legal proceeding, regardless of whether the government is a party to the proceeding. This is virtually without precedent. [ACLU of Indiana, 3/27/15]

The Atlantic: "The Indiana Statute Has Two Features The Federal RFRA -- And Most State RFRAs -- Do Not.As Garrett Epps of The Atlantic explained, the Indiana RFRA is not only much more than the federal RFRA, but also more expansive than nearly any other state RFRA:

[T]he Indiana statute has two features the federal RFRA -- and most state RFRAs -- do not. First, the Indiana law explicitly allows any for-profit business to assert a right to "the free exercise of religion." The federal RFRA doesn't contain such language, and neither does any of the state RFRAs except South Carolina's; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

[...]

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has "free exercise" rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year's decision in Burwell v. Hobby Lobby Stores, in which the Court's five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees' statutory right to contraceptive coverage.

Second, the Indiana statute explicitly makes a business's "free exercise" right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there's a lot of evidence that the new wave of "religious freedom" legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple's wedding. New Mexico law bars discrimination in "public accommodations" on the basis of sexual orientation. The studio said that New Mexico's RFRA nonetheless barred the suit; but the state's Supreme Court held that the RFRA did not apply "because the government is not a party." [The Atlantic3/30/15]

Wash. Post's Plum Line Blog: Indiana Law Expands RFRA Coverage To Individual Disputes. As the Plum Line's Paul Waldman explained, the Indiana RFRA is not the same as other iterations of the law, because it "directly covers disputes between individuals" and for-profit businesses, while the 1993 federal law "only concern[ed] instances where the federal government is forcing a person to do something or not do something":

1. Is this the same law as the federal RFRA and versions in other states?

The answer is no, for a couple of reasons. First, there's the intent. When the federal RFRA was passed in 1993, no one was talking about gay marriage, and it wasn't about how private individuals deal with each other. The law was spurred most directly by a case called Employment Division v. Smith, which concerned whether two Native American workers could get unemployment insurance after they had been fired from their jobs for taking peyote in a religious ritual. It was that kind of private religious conduct that the debate revolved around at the time.

But more importantly, the Indiana law is different from other laws in its specific provisions. It not only explicitly applies the law to for-profit businesses, it also states that individual can assert their religious beliefs "as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." [emphasis added] The federal law, and most of the state laws, only concern instances where the government is forcing a person to do something or not do something; the Indiana law directly covers disputes between individuals. [The Washington Post, Plum Line, 3/30/15]

ThinkProgress: Indiana's RFRA Applies To Disputes Between Private Citizens, Unlike All Other State RFRA Laws. ThinkProgress explained that Indiana's law goes further than nearly any other state RFRA because it applies "explicitly" to disputes between private citizens:

[ThinkProgress, 3/30/15]

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