On Monday Eric Holder’s BFF, Al Sharpton, compared Indiana’s Religious Freedom Restoration Act to “Jim Crow” and “slavery.”
Last week, Governor Mike Pence of Indiana signed into law the Indiana Religious Freedom Restoration Act (RFRA). Almost immediately, an uproar ensued, claiming that the law was discriminatory — that it provided a license for businesses to discriminate against gay and lesbian customers. Entirely lost in this kerfuffle has been the simple fact that the Indiana law is modeled on the 1993 federal law of the same name, and that counterparts have been adopted in 19 other states. Further, four federal courts of appeals and the Obama Justice Department have all taken the position that RFRA can be used as a defense in private suits involving the enforcement of laws that substantially burden free exercise of religion. Important debates over the intersection of faith and equality are impaired when they are overtaken by misguided rhetoric, rather than being informed by the history and context of how our legal system has treated this issue. […]
Joining the Second, Eighth, Ninth, and D.C. Circuits in finding that RFRA can be asserted as a defense in a private cause of action is the Holder Justice Department. In August of 2012, the United States Government stated that Wheaton College, if sued by an employee for failing to provide insurance that covered contraceptives, “in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates” RFRA. Yes, you read that right. The Obama Administration held that a corporation, albeit a non-profit one, could defend itself against a private claim from an employee by asserting that the Obamacare’s contraception mandate imposes a “substantial burden” on its free exercise of religion. That is to say, the most controversial aspect of the new Indiana religious-freedom law was blessed by Attorney General Eric Holder’s Justice Department. This position is directly at odds with the views of Sotomayor, Posner, and others. Again, none of this was particularly controversial until fairly recently.