Right-wing media are continuing to defend Indiana's newly-enacted Religious Freedom Restoration Act (RFRA) and dismissing concerns that the law could provide cover for religious individuals or business owners intent on discriminating against LGBT customers. In fact, RFRA has been used as a defense against discrimination claims in the past, New Mexico's version was used against a gay couple just recently, and supporters of these expanded forms of RFRA have explicitly pointed to anti-gay sentiment as their intent.

Since the passage of Indiana's RFRA, right-wing media have erroneously claimed that criticism of the law is overblown, because it does nothing more than mirror the federal version of RFRA and RFRAs in other states. But Indiana's law is more expansive than other versions because it provides a legal defense to both private individuals and for-profit businesses in lawsuits even where the government is not a party, and unlike several other states who have passed RFRAs, Indiana lacks a statewide law that protects LGBT residents from discrimination.

Conservative media figures like National Review's Rich Lowry have also argued that Indiana's RFRA will not be used as a license to discriminate against LGBT customers because if RFRA laws “were the enablers of discrimination they are portrayed as, much of the country would already have sunk into a dystopian pit of hatred.” Right-wing radio host Hugh Hewitt also downplayed the potential legal ramifications of Indiana's law, claiming on his show that the federal version of RFRA has “been the law in the District of Columbia for 22 years [and] I do not know of a single incident” of the law being used to discriminate against gay people. He did not address the fact that it is the newer state versions that have sparked the current outrage.

On the March 31 edition of Fox News' Fox & Friends, co-host Steve Doocy made a similar argument in an attempt to pretend fears of the law's discriminatory effects were baseless, claiming that Indiana's RFRA is not “anti-gay” because it has “never not once” been used as a legal defense by religious business owners accused of anti-LGBT discrimination:

It is true that Indiana's days-old religious freedom law -- currently in limbo -- has yet to be cited in a discrimination lawsuit.

But other RFRAs have been raised as a defense against a discrimination claim before. In a recent discrimination case in New Mexico, a gay couple filed a complaint against Elane Photography, claiming that the photographer had denied them services based on their sexual orientation in violation of the state's Human Rights Act. In response, the photographer used New Mexico's RFRA law as a defense. Although the Supreme Court of the State of New Mexico rejected that argument, they did so specifically because the government was not a party to the case -- something that Indiana's RFRA was crafted to get around by permitting the law to be used against private plaintiffs, not just the state.

As law professor Steve Sanders explained, one of the main proponents of Indiana's law, Advance America, wrote on its website that it supported the new law because it “will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers).” According to Sanders, “This message tells you much of what you need to know about the mindset of the people who insisted that legislators” in Indiana pass a religious freedom bill. And as law professor Marci Hamilton has noted, the media should not be surprised that these newer forms of state RFRAs look to be aimed at legitimizing anti-LGBT discrimination -- RFRA has been used to justify bias in the past:

Those RFRA defenders asserting that the law will not operate as a means to discrimination apparently believe that its well-heeled advocates have labored for nothing. Of course it is intended to aid in religiously motivated discrimination. The federal RFRA started with conservative Christians seeking to beat back the fair housing laws so believers could discriminate against unmarried couples, single mothers, and same-sex couples. Thus, this story of discrimination really isn't new. What is new, though, is that affected groups are now stepping up to protect their interests.