Clarence Page

Neither side in the uproar over Indiana’s “religious freedom restoration” law has been totally candid about its benefits or its dangers.

That often happens in politics, an arena in which it often seems that no statement is too good to be overstated.

For example, defenders of the controversial Religious Freedom Restoration Act, which Indiana Gov. Mike Pence signed last week, are technically correct when they say the law is not a “license to discriminate” against gays and lesbians as critics claim.

The new law basically says the government cannot intrude on a person’s religious liberty unless it can prove a compelling interest to impose that burden and does it in the least restrictive way.

Yet Gov. Pence conspicuously ducked and dodged repeated attempts by ABC’s “This Week” host George Stephanopoulos to get a straight yes or no answer to this simple question: “If a florist in Indiana refuses to serve a gay couple at their wedding, is that legal now in Indiana?”

That question had to be a tough one for Gov. Pence. Among other reasons, it does not take a legal scholar to notice how Indiana’s law differs significantly from the federal and state laws that he claims have the same language as the one he signed.

Nineteen states and the federal government have passed such laws, Gov. Pence wrote in a Wall Street Journal essay after his ABC appearance. He also notes that President Obama as a state senator “supported Illinois’s version of the law in 1998.”

“Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Clinton signed in 1993,” writes Gov. Pence.

So why pick on Indiana? Gov. Pence left out how much the Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton, and all of the other state versions.

For one thing, Illinois, the feds and the other states that Gov. Pence mentioned have other laws to protect the rights of gays and lesbians. Indiana does not have similar statewide protections.

Garrett Epps, who teaches law at the University of Baltimore, describes on The Atlantic’s website how much of the early news coverage failed to describe two provisions in the Indiana law that put new obstacles in the way of equal protection for homosexuals.

One explicitly allows any for-profit business to assert a right to “the free exercise of religion.” That’s in accordance with the U.S. Supreme Court’s Burwell v. Hobby Lobby decision, based on federal RFRA. That case successfully challenged provisions of the Affordable Care Act that required institutions to offer insurance coverage that conflicted with their religious views.

Second, the Indiana statute explicitly makes a business’ “free exercise” right a defense against a private lawsuit by another person, not just by government.

That certainly sounds like a nod to the new wave of “religious freedom” legislation that followed the New Mexico state court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico’s Supreme Court held that the RFRA did not apply “because the government is not a party.” In Indiana, it now is a party.

A similar law is working its way through Arkansas’ legislature with possibly more states to follow.

In a Tuesday news conference, Gov. Pence called for new legislation “before the end of this week” to clarify that “this law does not give businesses the right to deny service to anyone.” Time is precious, as pressure mounts from celebrities, business leaders and rival states for Indiana lawmakers to “Fix This Now,” as a rare front page editorial in the Indianapolis Star demanded.

Mayor Rahm Emanuel of neighboring Chicago invited Indiana businesses to move to his state. Virginia’s Democratic Gov. Terry McAuliffe did the same.

NCAA officials, headquartered in Indianapolis, expressed concern over possible civil rights infringements. Celebrities as varied as Chicago-based Wilco and Miley Cyrus announced boycotts.

Apple CEO Tim Cook spoke for many when he criticized such laws in a Washington Post op-ed. “The days of segregation and discrimination marked by ‘Whites Only’ signs on shop doors, water fountains and restrooms must remain deep in our past,” he wrote. “We must never return to any semblance of that time. America must be a land of opportunity for everyone.”

Some people will say he is overstating the case with his civil rights era comparisons. But if he is, it is not by much.