Michael Boucai says Indiana fight spotlights a dangerous trend

The controversy over Indiana’s Religious Freedom Restoration Act has brought much-needed attention to an entire class of laws, says Associate Professor Michael Boucai.

According to Boucai, the original version of Indiana’s RFRA “permitted businesses, among others, to claim religious exemptions from local laws prohibiting discrimination against protected groups.” Indianapolis, for example, outlaws discrimination on the basis of race, gender, sexual orientation, and other characteristics.

Enacted in response to a judicial decision legalizing same-sex marriage in Indiana, the state’s RFRA would have allowed businesses, such as wedding photographers and banquet halls, to claim a faith-based objection to serving same-sex couples. “That,” says Boucai, “is why the law was seen as inviting an open season on LGBT people.”

In response to a storm of criticism, including boycotts of the state, Indiana amended its RFRA to clarify that the law cannot be used to trump nondiscrimination laws.

But the problems with Indiana’s law “went deeper than the antigay animus that it reflected and sanctioned,” says Boucai, an expert in LGBT rights.

Concern about discrimination against LGBT people was, “if not a red herring, in some ways a diversion from a more fundamental issue.” The federal RFRA and its equivalents in over twenty states “conceivably permit exemptions from many other forms of essential regulation.” Boucai observes that “people have already invoked these laws to evade mandatory vaccination rules and even prohibitions of child abuse. The Bible, after all, says ‘Spare the rod and spoil the child.’”

In cases about issues ranging from Mormon polygamy to ritual use of hallucinogens, the Supreme Court “has repeatedly held that individuals cannot raise free-exercise claims against laws of general applicability.” Therefore, says Boucai, the RFRAs codify “as a statutory right what the Court has wisely rejected as constitutional right.”

“It’s important that the public see how RFRAs—not just Indiana’s—open the door for every person to become a law unto her- or himself,” he says.