With 2015 now in the record books, a look back shows just how busy and…
With a swipe of his pen in late March, Indiana Gov. Mike Pence ignited a national firestorm by signing into law the state’s new Religious Freedom Restoration Act.
Lawmakers believed the act would “ensure that Indiana law will respect religious freedom and apply the highest level of scrutiny to any state or local governmental action that infringes on people’s religious liberty.”
But to the Twitterverse, it meant “a license to discriminate” – mostly against the LGBT community, who reasoned that business owners could legally refuse to serve them.
Just days before the NCAA Final Four basketball tournament was set to arrive in the capitol city of Indianapolis, staff at tourism promoters such as Visit Indy flew into “full crisis mode” as boycotts were called for, rock concerts were canceled and national conventions pulled out.
Since then – and amid similar actions taken in Arkansas – revisions were made to the act’s language to clarify that it does not provide business owners the legal right to discriminate against their customers based on sexual orientation. Despite that fix, the Associated Press has reported, repairs to Indiana’s tarnished brand will take years.
To NIU political scientist Mitch Pickerill, the hullabaloo in Hoosierland is only natural and merely the latest step in a process that began a half-century ago.
What’s more, he says, it’s a throwback to the conciliatory nature of old-school politics.
“We live in a polarized world now. Politicians are engaged in policymaking and position-taking to appeal to their bases,” says Pickerill, whose research interests include American politics and constitutional law.
“This whole thing is complicated. Cable news channels don’t do the story justice,” he adds. “Sometime you have to take it issue by issue and get some historical context to understand what happened.”
Pickerill points to a 1963 case before the U.S. Supreme Court – Sherbert v. Verner – brought by Adeil Sherbert, a member of the Seventh-day Adventist Church.
“Her company went to a six-day work week: Monday through Saturday. For Seventh-day Adventists, their Sabbath is Saturday. She didn’t go to work, got fired and was denied unemployment,” he says.
Justices voted 7-2 that, according to www.oyez.org, the South Carolina Employment Security Commission’s eligibility restrictions “imposed a significant burden on Sherbert’s ability to freely exercise her faith.” She was protected under the Free Exercise Clause of the U.S. Constitution.
Fast-forward 30 years.
In Employment Division v. Smith, the court took on a case involving Native American counselors at a drug rehab center. “Part of their rituals involved taking peyote,” Pickerill says. “The hallucinations they got from it were visions from the gods.”
When they were fired for using drugs, their claims for unemployment compensation were turned down. Justices eventually voted 6-3 against the counselors in a 1990 ruling.
According to www.oyez.org, “Justice Antonin Scalia, writing for the majority, observed that the court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conducts that government is free to regulate.”
“In response to Smith, we got a political coalition of religious groups and civil rights groups who didn’t like it,” Pickerill says. “They lobbied Congress to pass the Religious Freedom Restoration Act, which restored the old test from Sherbert v. Verner cases.”
Sure enough, that also came before the high court, which struck down language applying directly to states.
“After that, you had broad coalition of liberal and conservative groups going to states and getting them to pass their own laws, each making a civil rights act for people whose civil freedom had been violated. It really wasn’t very controversial,” he says.
“Senate Bill 101 prohibits state or local governments from substantially burdening a person’s ability to exercise their religion – unless the government can show that it has a compelling interest and that the action is the least-restrictive means of achieving it,” the Indianapolis Star reported regarding the original language. “Although the bill does not mention sexual orientation, opponents fear it could allow business owners to deny services to gays and lesbians for religious reasons.”
Meanwhile, Pickerill says, Indiana’s headache came at a time when religious liberty is a hot-button issue thanks to the nation’s extremely divisive opinions about Obamacare. In one prominent challenge, the Supreme Court ruled 5-4 last year that the religious owners of Hobby Lobby can refuse to pay for certain kinds of contraception for its female employees.
At the same time, he adds, many state governments are “unified” under one political party and accomplishing things that are nearly impossible in gridlocked Washington.
“You’re getting policies in these states that tend to sit on ideological extremes, such as marijuana legalization and gun rights. It doesn’t typically blow up because the base of the party in power agrees with the policy,” he says. “This just happened to make the national news and become part of a much broader story.”
He can understand the feelings of business owners who’d rather not bake cakes or rent tuxedos for same-sex weddings.
“You have a lot of political holding that position, and they’re sincere about it. These are devout folks. We have a long history of freedom of religion in this country, and we have to respect sincerely held religious views even if we disagree with them,” he says. “At the same time, I think we need to respect the concerns of the LGBT community with respect to discrimination based on sexual orientation.”
Pickerill admits he’s intrigued by this chapter in the “culture wars” and that “all of this publicity and pushback led to the kind of compromise we haven’t been seeing lately, especially at the federal level.”
“We watch the news now, and everything’s a scorecard. Who wins? Who loses? Sometimes, we forget that politics is about ideas,” he says. “Ten to 15 years ago, I would not have believed that same-sex marriage would be legalized in the places where it’s legal or that marijuana would be legal in the places where it’s legal.”
Considering such changes – welcome breaths of fresh air to some, recipes for destroying the American fabric to others – is it safe to assume that the nation is becoming less conservative?
Maybe, Pickerill says.
“The conventional wisdom among commentators and scholars is that Republicans right now tend to take positions that do not resonate with the Millennials and the generation coming up on their heels. One would think that would be a problem,” he says.
“On the other hand,” he adds, “the Republicans hold most statehouses, and if you’re sitting in the leadership of the Republican Party, maybe you’re thinking, ‘If it ain’t broke, don’t’ fix it.’ But I’ve got to think that, at some point, continuing to hold positions that a whole new wave of voters disagree with is going to come up and catch you.”