To understand the current Indiana meltdown, it really helps to get off page one and look at how the basic elements of this state-level Religious Freedom Restoration Act (RFRA) story are being covered in other sections of the typical American newspaper. In other words, in the hoops-crazy state of Indiana, it is crucial to see how RFRA is being covered on sports pages.
I'm afraid the following story in The Los Angeles Times is rather typical, starting with that headline: "NCAA feeling pressure to take stand against controversial Indiana law."
For starters, the words "Religious Freedom Restoration Act" do not appear in this story. Readers also do not learn that these state-level laws are in effect in 19 other states, with many other states operating with the understanding that the national RFRA -- a shining moment of church-state sanity from the Bill Clinton era -- will been seen as operative inside their borders. Instead, this is how the story tips things off:
This is usually a happy time of year for college basketball, a chance for the game to take center stage with all eyes focused on March Madness.
But just days before the Final Four tips off in Indianapolis, the mood surrounding the tournament has turned serious.
With both its title game and its headquarters located in Indiana's capital, the NCAA is facing widespread pressure to take a stand against a hotly debated state law that many fear will lead to discrimination against gays and lesbians.
The key words, of course, are "that many fear." Who needs names and titles? A few lines later, this same passive-aggressive journalistic approach is used once again:
It was just last week that Indiana Gov. Mike Pence signed SB 101, which prohibits "substantially burdening a person's exercise of religion." Critics worry the law will allow business owners to cite their beliefs in denying service to gays and lesbians.
Reaction has been swift, with corporate leaders such as Apple Chief Executive Tim Cook and Yelp Chief Executive Jeremy Stoppelman decrying the legislation. The Internet site Angie's List canceled plans for expanding its Indianapolis headquarters just days before groundbreaking.
Once again, note the key words -- "Critics worry." There is no need, during a tsunami, to actually pause and name the critics or to document the degree to which their views are informed or relevant. There is no time to stop and actually discuss the contents of the bill or some bills linked to it have been used and enforced in the past. There is no space in which to consider the views of people who have studied the impact of this kind of legislation.
In other words, there is little or no time or space for information about why RFRA bills exist. The views of those attacking the Indiana bill are all that matter. The story ends, for example, with a short sermon by Cyd Zeigler, identified as co-founder of Outsports and a member of the LGBT Sports Coalition, with no response from anyone who disagrees with this point of view or who has information that might undercut his statements.
There is no debate here. There is no time or room for journalism. In particular, there is no indication that there are people -- I continue to call them the old liberals -- who are in favor of religious liberty and gay rights.
With that in mind, let me point readers toward a link sent my way this morning by our own Richard Ostling, a patriarch of religion-beat coverage for decades both at Time and the Associated Press. The writer is University of Virginia law professor Douglas Laycock, a source whose views I have been spotlighting for several years now.
Yes, this is taken from The Weekly Standard. However, these are strange times and most of the veteran First Amendment liberals are currently being quoted in conservative media, and not in the new illiberal media. Note that his views are critical of the GOP in Indiana, as well as the state's critics. Imagine that.
Please read this, if you care at all about journalism and improved coverage of this issue. Warning: Some of this involves actual facts about history, topics rarely addressed in modern newsrooms facing a kazillion digital deadlines each day:
The issue with respect to Religious Freedom Restoration Acts (RFRAs) is whether people should be allowed to practice their religion, even when their acts would otherwise be illegal, if they are not doing any real harm. The American tradition of religious liberty has exempted religious practices since the seventeenth century. Quakers in colonial times didn't have to swear oaths, or serve in the militia.
Sometimes this is entirely uncontroversial. It is illegal to give alcohol to minors, but no one thinks that law should be applied to communion wine, or seder wine at the Jewish Passover.
For a time, the federal Free Exercise Clause (part of the First Amendment) required religious exemptions unless the government had a compelling interest in enforcing its regulation. Then in 1990, the Supreme Court changed that rule, and basically said that the free exercise of religion is protected only against discrimination.
Congress responded with the federal Religious Freedom Restoration Act in 1993, creating a statutory right to practice your religion, free of government regulation except where necessary to serve a compelling government interest. That law passed unanimously in the House, and 97-3 in the Senate; Bill Clinton praised it and signed it.
But in 1997, the Supreme Court said that the federal RFRA could not constitutionally be applied to the states. If states wanted to protect religious practice subject to the compelling interest test, they would have to do it themselves. This is the background to why states began enacting their own RFRAs.
There are now twenty states with RFRAs, and eleven more that have interpreted their state constitution to provide the same level of protection. These 31 states include all the big states except California: Texas, New York, Pennsylvania, Florida, Michigan, Ohio, Illinois. You had probably never heard anything about any of these laws, except for Hobby Lobby, because they haven't done anything controversial.
There are hardly any cases about discrimination, and nobody has ever won a religious exemption from a discrimination law under a RFRA standard. ...
State RFRAs are quite unlikely to affect discrimination claims. I hope they do affect discrimination claims in certain very narrow contexts: very small businesses providing wedding services or marital counseling services. But I am not optimistic. So far, the religious claimants have lost all of those cases, including the wedding photographer under the New Mexico RFRA, and the florist in Washington under a RFRA-like interpretation of the state constitution.
Discrimination cases in other contexts simply don’t come up. The florist in Washington had served her gay customer for years, knowing that the flowers were for his same-sex partner; she had had gay employees. She didn’t object to any of that; she objected to serving the wedding, because she understands weddings and marriages to be inherently religious. She sees civil marriage as resting on the foundation of religious marriage.
Of course there are real bigots out there, and some of them discriminate against gays and lesbians. They are doing that in states without RFRAs as well as in states with RFRAs. They mostly aren't asserting religious justifications; they aren't producing cases. And if they do start to produce cases, all experience is that they're going to lose.
Part of the problem is conservative legislators and activists promising the base that a state RFRA will protect them against gay-rights laws. That's just pandering; there is no basis in experience to think that. But the gay-rights side has piled on with the charge that these laws are licenses to discriminate. So both sides are misleading the public. And the academics who have actually studied these laws and know what they do can't get anyone to pay attention over the din. ...
None of the incredible denunciations of the Indiana RFRA are based on a real case; they are all talking about things that have never actually happened.
And if you want to know where I'm coming from: I filed a brief in the Supreme Court urging the Court to require same-sex marriage as a matter of constitutional law. And then to protect the religious liberty of dissenters. I believe in "liberty and justice for all," with an emphasis on "all." Most of the activists in this fight, on both sides, want liberty and justice only for their side. They want to crush the other side.
In other words, on First Amendment issues, Laycock is a liberal.