Real Progressives Should Support Indianas Law

TIME Ideas politics Real Progressives Should Support Indianas Law Michael ConroyAP A window sticker on a downtown Indianapolis business, Wednesday, March 25, 2015, shows its objection to the Religious Freedom bill passed by the Indiana legislature.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and co-author of "Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution."

Im for marriage equality having filed many briefs supporting challenges to restrictive state laws but I have no problem with Indianas new religious-freedom law. And neither should progressives.

After all, would you want Unitarians to work the audio equipment at a Southern Baptist revival? Would you force a Jewish printer to produce anti-Semitic flyers? Would you require Muslim butchers to serve pork ribs?

The Supreme Court said in 1990 that the First Amendment doesnt grant exemptions from generally applicable laws, so religious objectors have to seek relief from the legislature. Accordingly, a near-unanimous Congress passed, and President Bill Clinton signed, the federal Religious Freedom Restoration Act to ensure that laws and other government actions only burden religious exercise where absolutely necessary to achieve a compelling goal.

Twenty states have followed suit including Illinois, with the support of state Senator Barack Obama plus courts in 11 other states interpreted state constitutions to provide similar protections. So mark me unimpressed by Hillary Clintons tweeted disappointment that this new Indiana law can happen in America today.

Indeed, the American Civil Liberties Union and other progressive groups long supported these laws, which have been used to protect religious practices involving hallucinogenic substances, animal sacrifices, eagle feathers, and symbolic daggers but not discrimination in hiring employees or serving customers.

None of these laws, at either the federal or state levels, have ever allowed exemptions from anti-discrimination laws. Indiana isnt even one of the 21 states that prohibit employers from discriminating based on sexual orientation, so theres no exemption to be granted here.

Some who protest the new law point to its explicit application to disputes between private parties. But most courts including the most progressive federal appellate court in the nation, the California-based Ninth Circuit have interpreted the federal RFRA in this manner too. And that makes sense: If someone invokes a law to force you to do something, your objection would be to that law, without which there would be no burden on your religious exercise.

But again, never has a RFRA allowed a private party to discriminate against gays (or anyone else) in employment, service, housing, or any other scenario in the parade of horribles raised by opponents of Indianas law.

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Real Progressives Should Support Indianas Law

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