As the media firestorm continues in Indiana, your GetReligionistas have heard from readers asking to know the essential differences between the Indiana law that is under attack and the Religious Freedom Restoration Act (RFRA) passed with bipartisan enthusiasm during the administration of President Bill Clinton. Simply stated, the national RFRA has served as the models for the various state RFRA bills through the years, including the law that -- when he was in the Illinois state senate -- drew the support of Barack Obama.
Reporters covering this story may, in addition to actually studying the contents of the bill, want to study the impact these state bills have had in the 19 states that have adopted the same language. This Washington Post piece, with map, is quite helpful. Have these bills been abused? There may be stories there.
Yes, it's crucial for reporters to actually consider what happens when these bills are used in real cases, with real defendants, in real courts, even in conservative zip codes. Consider, for example, this Texas press release in 2009 in which the American Civil Liberties Union cheered the state's RFRA law:
The Texas Supreme Court ruled in favor of Pastor Rick Barr who challenged an ordinance passed by the City of Sinton (Barr v. City of Sinton) to close a half-way house for low-level offenders across from the pastor’s church, Grace Christian Fellowship.
“Today’s decision is significant because it is one of the Court’s first cases to affirmatively construe Texas’ Religious Freedom Restoration Act (RFRA),” said Lisa Graybill, legal director of the ACLU of Texas. ...
“This decision sends a strong message to state and local governments in Texas that the Court will not tolerate state action that targets a religious group, whatever their faith,” said Graybill. The court’s ruling upholds the intent of the RFRA to prevent state and local government officials from substantially burdening the free exercise of religion, including religious practices and religiously motivated conduct, without a compelling justification for doing so, she explained. ”This is a major victory not just for Pastor Barr and Philemon Homes, but for all Texans who cherish religious freedom.”
However, journalists seeking guidance on style issues related to RFRA laws -- should, for example, terms such as "religious freedom" and "religious liberty" be framed with scare quotes -- may want to consult another authoritative source. That would be The New York Times. However, in this case we are talking about the Times of 1993.
Let us attend:
WASHINGTON, Nov. 16 -- President Clinton today signed into law legislation requiring the Government to meet stringent standards before instituting measures that might interfere with religious practices.
The new law, the Religious Freedom Restoration Act, overturns a 1990 Supreme Court ruling that set a looser standard for laws that restrict religious practices.
That ruling, Employment Division v. Smith, abandoned a long accepted principle of constitutional interpretation that required the Government to demonstrate a "compelling state interest" to justify any measure restricting religious practices. Under the ruling, restrictions were acceptable as long as they were not aimed at religious groups alone.
The new law restores the old standard, and even in cases where Government concerns like health or safety do justify infringements of religious practices, the new law requires the use of whatever means would be least restrictive to religion. After the 1990 decision, religious groups could not claim exemptions from routine legislation or regulations on the basis of the First Amendment's guarantee of religious freedom.
Note that the term religious freedom is used accurately and without irony. Once again, it is crucial to note that we are talking about legislation, then and now, built on the same template as that used by a bipartisan coalition that including a stunningly wide range of secular and religious groups.
Thus, the Times of 1993 noted:
President Clinton hailed the new law at the signing ceremony, saying that it held government "to a very high level of proof before it interferes with someone's free exercise of religion."
J. Brent Walker, general counsel of the Baptist Joint Committee on Public Affairs called the new law "the most significant piece of legislation dealing with our religious liberty in a generation."
His sentiments were echoed by many other members of an unusual coalition of liberal, conservative and religious groups that had pressed for the new law. The coalition included the National Association of Evangelicals, the Southern Baptist Convention, the National Council of Churches, the American Jewish Congress, the National Conference of Catholic Bishops, the Mormon Church, the Traditional Values Coalition and the American Civil Liberties Union.
Those seeking the full text of Clinton's speech at this event can click here.
And who supported this language on The Hill?
In the Senate, where the bill was approved 97 to 3 on Oct. 27, it was sponsored by Senators Edward M. Kennedy, Democrat of Massachusetts, and Orrin G. Hatch, Republican of Utah. In the House, which passed the bill last May by a voice vote without objection, it was sponsored by Representative Charles E. Schumer, Democrat of Brooklyn, and Representative Christopher C. Cox, Republican of California.
Finally, I would urge reporters interested in additional background materials on the Indiana fight to watch some of the sessions recorded during the "Free Religion in a Diverse Society" forum held at the Newseum -- not known as a center for the religious right -- back in 2013. Most of the speakers were (a) supporters of gay marriage, (b) supporters of RFRA laws and (c) highly concerned about the legal implications of recent American debates on these topics.
Here is a key quote from the event, drawn from one of my "On Religion" columns. This speaker is University of Virginia law professor Douglas Laycock, but several other old-school liberal participants used very similar language, including Marc Stern of the American Jewish Committee.
Laycock noted that:
... there has been a violent legal and political clash between gay rights and the rights of religious conscientious objectors. At this point, it may be too late to find a compromise that would protect citizens on both sides of this constitutional firefight. ...
As the gay-rights cause has gained momentum, its leaders have grown increasingly bold. More than a few liberals, said Laycock, not only want to seize sexual freedoms, but to force religious objectors to affirm their choices and even to pay for them. Some on the left, he said, are now "making arguments calculated to destroy religious liberty."
Consider, Laycock said, language used by state Sen. Pat Steadman of Denver, as he fought for a civil unions bill in the Colorado Senate. ... What should liberals say to those who claim that their religious liberties are being violated?
"I'll tell you what I'd say -- get thee to a nunnery," he said, in debate recorded on the Senate floor. "Go live a monastic life, away from modern society, away from the people you can't see as equals to yourself. Away from the stream of commerce where you might have to serve them, or employ them, or rent banquet halls to them. Go someplace and be as judgmental as you like. Go inside your church, establish separate water fountains, if you want."
This was provocative language, but this gay leader was using arguments now common in American politics, said Laycock. "No living in peace and equality and diversity for him. If you are a religious dissenter you have to conform or withdraw. For many people this hostility to religious liberty is a growing and intuitive reaction."
Once again, reporters are covering the same RFRA concepts and language today. Do they know that?
My advice: Read the bill. Read the RFRA history. Call articulate legal voices on both sides of the current debate. Ask them questions. Print the answers. Strive for a balance in the voices, including the voices of traditional liberals who remain committed to RFRA and freedom of conscience on these complex issues. Don't join the thundering herd. Strive to do basic journalism that treats both sides with respect. Is that possible right now?