Why a pro-same-sex-marriage law professor supports Indiana's religious freedom law

Indiana's new Religious Freedom Restoration Act (RFRA) has provoked a firestorm of criticism from activists who fear that it could be invoked as a defense of discrimination against LGBT people. And on the other side, many have embraced the law for exactly the same reason. The Indiana religious right group Advance America praised the law, saying it would help ensure that "Christian bakers, florists and photographers [are not] punished for refusing to participate in a homosexual marriage."

But religious liberty expert Douglas Laycock, a law professor at the University of Virginia, thinks this is all confused. RFRAs aren't about enshrining discrimination, he argues; they're about preventing discrimination against small, vulnerable religious groups. The point isn't to help homophobic bakers; it's to protect Muslim women against discrimination for wearing veils, or to ensure that Sikh men can wear turbans and kirpans in the workplace.

Laycock has a long history of defending religious groups in cases involving freedom-of-worship questions. He successfully argued on behalf of a Santeria church in Church of Lukumi Babalu Aye v. City of Hialeah, a case in which the Supreme Court unanimously struck down a local ordinance meant to stop the church from conducting animal sacrifices. He has also advocated on behalf of the separation of church and state, arguing Town of Greece v. Galloway on behalf of plaintiffs who objected to the town board opening meetings with prayers; the Court ruled that the prayers were constitutional, 5-4. He is a vocal supporter of same-sex marriage, but supports protections for the religious liberties of opponents.

We spoke on the phone Monday afternoon; here's a lightly edited transcript of our conversation.

Dylan Matthews: Opponents of the Indiana RFRA argue that it's really unprecedented, because while a number of other states and the federal government have RFRAs, Indiana's explicitly applies to conflicts between private parties, not just to the government. How big of a deal is that?

Douglas Laycock: It's not much of a distinction. If the neighbors are mad that you're feeding the homeless, it really doesn't matter if the neighbor sues you or the city sues you. The discrimination cases, which the religious side always loses, it's always the same. Most of the cases about discrimination have been filed by the state human rights commission or the state attorney general and not by the gay couple who says they were discriminated against.

Here's the history on suits by private citizens. The federal RFRA was plainly intended to provide a defense if a church or religious believer was sued by a private citizen. They wanted to make clear that it also covered litigation against the government, because there's this issue of sovereign immunity, that you generally cannot sue a state. So they were trying to clarify, and they put in, specifically, that you can get relief against the government. Later, people began to say, "That means only against the government." It doesn't say only, and the courts are divided, but some have read it to mean only against the government. There's an article by a student in the Virginia Law Review that carefully collects the drafting history. It's very clear how this happened.

A lot of the states just copied the federal language, so the New Mexico RFRA had the same ambiguity, and then the New Mexico Supreme Court said suits by private citizens aren't covered. Indiana decided to clarify that ambiguity and make clear that suits by private citizens are covered. I think that goes back to the original meaning of the federal RFRA.

"The ultimate nightmare scenario is a case in Kansas where a woman literally died for her faith"

On discrimination cases, in particular, the state is nearly always authorized to sue on behalf of the victim of discrimination. It not only restores the original intent, but it also doesn't matter for the kinds of cases the gay rights folks worried about.

DM: The nightmare scenario, from a gay rights perspective, seems to be that this would provide a defense for discriminatory practices. If a same-sex couple sues a florist who refuses to work on their wedding, the florist could use this defense. Would that happen? What is this defense used for in practice?

DL: No, I don't think that's the nightmare scenario, because religious folks haven't been winning discrimination cases anyway. There aren't that many of these cases, and they're quite diverse. They involve all sorts of religious practices, usually from non-mainstream religions, small minority-group religions.

But at mainstream churches, there has been litigation about religious feeding programs. The one case everyone has heard about is Hobby Lobby, which is almost the only case that became at all controversial. That's a case where, really for the first time in our history, the government made it illegal in certain contexts to practice a core teaching of the largest churches in the country. They knew what evangelicals and Catholics thought about these forms of contraception that they think cause abortions, and said they needed to pay for them and provide them anyway. That's an unprecedented intrusion into religious liberty.

Even so, that case was decided on the premise that the government had another way to provide free contraception without making the employer pay for it, so the impact on female employees, the court said, was basically zero. They'd still get their contraception. So nothing in Hobby Lobby suggests that employees or customers have to do without to accommodate the merchants' or the employers' religious beliefs. The ultimate nightmare scenario is a case in Kansas where a woman literally died for her faith because of government intransigence, and for lack of a state RFRA. It doesn't happen very often, but it's at least a real case, and all the complaints about the discrimination that's going to be authorized by the Indiana RFRA is not based on any real case; it's all completely hypothetical.

DM: I'm not familiar with that Kansas case. What happened?

DL: The Kansas case concerned a woman named Mary Stinemetz who needed a liver transplant. She was a Jehovah's Witness, so she couldn't have a blood transfusion. It turns out that there are bloodless liver transplants, and they were available in Omaha, and it was actually cheaper in Omaha than it would have been anywhere in Kansas.

And Kansas Medicaid said, "We don't pay for out-of-state medical care, period." So she filed a lawsuit under the state constitution, and the state said, "Well, our state constitution means the same thing the Supreme Court says the federal constitution means. It means we don't have to make any exceptions for religious people."

It took two years to litigate that, and finally the Kansas court of appeals said basically that the Kansas constitution means the standard of a RFRA applies. The government needs a compelling interest to refuse an exception, and it didn't have any interests at all here. She won her lawsuit, but it took two years, and by that point her medical condition had deteriorated. She was no longer medically eligible for the transplant, and she died in 2012.

DM: That's horrible.

DL: It's horrible. And it was all motivated by this rule, "We don't have to make exceptions." That's the government's understanding of the law in most places, apart from a state RFRA.

DM: Why isn't the First Amendment enough in cases like this?

DL: The First Amendment has been interpreted by the Supreme Court not to require exemptions for religious practice. So if a law is generally applicable, it can be applied even to a worship service, and the state has no duty to justify that or show a need or a reason for that. The federal RFRA was in response to that decision, and the state RFRAs have mostly been to a second decision that said the federal RFRA didn't apply to states.

"There are hardly any cases about discrimination, and the ones there are the government has won"

There are also state constitutions. The state constitutional standard in Indiana is unique and ambiguous and fuzzy. Only one claimant has ever won a religious exemption under the Indiana constitution. Without the state RFRA, there's really no protection for most religious practices, and the kind of cases that arise are unpredictable conflicts between the vast diversity of religious practices in America and the great diversity of different kinds of regulation.

There are cases about churches feeding the homeless. Sometimes neighbors object to that. There are cases about Muslim women wearing scarfs or veils, there are cases about Amish buggies, there are cases about Sabbath observants. There are hardly any cases about discrimination, and the ones there are the government has won.

There are never very many cases under a state RFRA, but they're terribly important to the religious believers who are caught up in them.

DM: You suggested that most RFRA cases involve small religious groups, like Jehovah's Witnesses or Muslims or the Amish. Has someone actually tallied that up, or is that just your impression as an expert?

DL: I don't know if anyone's counted. There was a survey by a guy named Chris Lund that's several years old now. He collected all the state RFRA cases; it's remarkable how few there were. Some of them, of course, are evangelical Christians or Catholics, but a lot of them were smaller minority groups. I don't know if there's a big enough sample to make a strong claim. But it's typically a somewhat unusual religious practice, even if it's a Christian practice. It's not something that's all that widespread.

DM: Your argument depends a lot on courts consistently finding that states have a compelling interest in fighting discrimination, such that the RFRA doesn't justify an exemption. How do courts actually compare those interests? Are there doctrines or tests that have developed, or do judges just weigh the intangibles in each case?

DL: To some extent, in each case they weigh the intangibles, but they certainly look to precedent in similar cases. No one has ever won an exemption from a discrimination law under a RFRA standard, so there's plenty of precedent saying that if you're seeking exemption from a discrimination law, you lose. I say plenty — there aren't dozens of cases, there's a relative handful of cases, but they all go the same way.

In the gay rights context, which seems to be fueling this, there's the New Mexico wedding photographer who got a fair amount of press. New Mexico has a RFRA. Twelve different judges heard that case as it worked its way up from the human rights commission to the state Supreme Court, and the religious wedding photographer did not get even a single vote from a single judge. It was ultimately decided on the grounds that RFRA just didn't apply to a suit by a private citizen, but they rejected every other argument she made, and it was perfectly clear they would have found a compelling government interest if they had gone to the next step.

A florist in Washington just lost in the state trial court. That court found a compelling state interest under the state constitution, which is interpreted as including the RFRA standard. There's a wedding case in Colorado that hasn't gone to court; it's in the state administrative agency. That's not a RFRA state, so that'd be a different standard. There was a doctor in California who didn't want to do an in vitro fertilization for a lesbian couple. She referred the couple to her partner in the same practice. They said, "Not good enough, we're terribly insulted" and so forth. California is not a RFRA state and the doctor lost.

Those are the only recent cases I'm aware of. There's one more, 30 years ago. A fitness club in Minnesota said they just didn't hire gays and they offered a religious reason for it, and that was a different time for gay rights — but the owner of the fitness club lost under the compelling interest test under the state constitution, basically the RFRA standard. The court said there was a compelling interest in nondiscrimination. There are no modern cases about race discrimination. There were a few back in the 1960s, and the person offering a religious justification to discriminate always lost. But the ones I walked you through are the only recent cases that I'm aware of.

Joe Raedle/Getty Images

A Hobby Lobby. A lobby, full of hobbies. (Joe Raedle/Getty Images)

DM: Another point opponents of the law have made is that it explicitly applies to corporations. What does extending RFRA protections to companies do, in practice?

DL: It doesn't come up a lot. The US Code defines "person" to include corporations, and RFRA protects persons. It should not have been a surprise in Hobby Lobby that corporations were covered. The question was compelling interest and least restricting means. But there are hardly any cases by corporations, because corporations mostly are not run for religious purposes, certainly if they're not closely held. The key to the Hobby Lobby case is that it was owned by one family, and they were unanimous about the religious commitments of the business.

As soon as you take in outside shareholders, that becomes untenable as a practical matter. They don't want to sacrifice profit for your religious concerns. There are very few corporate claims and it's not likely, to the extent there are any, that they're going to win many. Hobby Lobby is a very special context. It is closely held by one family, that family believes they're being asked to kill innocent babies, and the court says, "Well, that may be true, but the government has another way to kill those babies, so we can exempt you." It's an extremely narrow ruling, in spite of all the extravagant rhetoric you've heard from both sides about it.

I don't agree with what they believe about abortion, and I'm sure many of your readers don't, but if you believe that — if you believe you're really being asked to kill babies — that's an extraordinary thing for the government to ask you to do. It's not unreasonable to seek an exemption from that.

DM: Are there other aspects of the law that you think are being misreported or misinterpreted?

DL: I think the main thing is this charge that it's a license to discriminate. That's the principal allegation, and it's based on nothing in real experience. You've got Republican legislators fueling the fire by saying when the bill was under consideration that this would protect Christians against gay rights. They either don't know what they're talking about, don't know what the bills have actually done, or they're just pandering to the base and promising things they can't deliver. There's blame to go around here, but neither side is talking much about what these bills have actually done in practice.

"it really is possible to protect liberty and justice for all here"

DM: Why do you think that there's been such a mobilization against this, if the practical effects are as small as you say?

DL: I think the lawyers for the gay rights movement know exactly what they're doing. This works, right? They killed a bill in Arizona, and it worked so well that they're doing it again. As the movement succeeds, as marriage equality nationwide seems within their reach, they also become more extreme in their demands, and more resistant to any kind of exemption for anybody. They just don't want to take any chance, they don't want to ever have to prove a compelling interest or worry that some red-state judge somewhere might decide differently from how every other judge everywhere in the country has decided.

I think it really is possible to protect liberty and justice for all here. I filed a brief in the marriage cases saying, "Protect marriage equality, and after you've done that, protect the religious liberty of churches and religious organizations and very small vendors in the wedding business." We can do that. We can be fair to both sides. But neither side seems much interested in it. They want to crush the other side.

Watch: How most states still discriminate against LGBT people

Further reading: How Indiana's religious freedom law sparked a battle over LGBT rights.

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