US News & World Report

By Nicole Hemmer

On Sunday, Indiana Gov. Mike Pence defended Indiana’s new religious freedom law on ABC’s “This Week.” The law, a state-level version of the Religious Freedom Restoration Act, would allow individuals and businesses to engage in acts of discrimination under the veil of religious freedom. Widely seen as an effort to allow discrimination against gay men and women, the law has brought unwelcome attention to the state government, which just last year attempted to pass a constitutional amendment banning same-sex marriage.

As part of his defense, Pence pointed out that President Bill Clinton and then-state Sen. Barack Obama had both supported forms of the Religious Freedom Restoration Act in the 1990s. This has been a popular attack in conservative circles, picked up by National Review and the Weekly Standard, and repeated again and again on talk radio. Yet the argument is deeply flawed, built on a deliberate misreading of the history of the Religious Freedom Restoration Act.

Passed in 1993 to protect religious groups from laws that impinged on their beliefs, it had broad support from groups ranging from the American Civil Liberties Union to the Southern Baptist Convention. At the time, the law was widely understood as providing protection to religious minorities, like exempting Hmong immigrants from autopsies or Muslim students from bans on head-coverings.

Concerns that the law may be turned into a weapon for discrimination came later. Debating a new version of the law in 1999 (after the Supreme Court declared the 1993 law unconstitutional), New York Democratic Rep. Jerrold Nadler attempted to add an amendment preventing it from overriding anti-discrimination laws. “The bill should be used as a shield protecting religious liberty but not as a sword against civil rights laws,” Nadler argued.

The amendment failed to pass, largely along party lines: 204 Republicans and 30 Democrats voted against it, and 15 Republicans, 174 Democrats and 1 independent voted for it. Clinton, though he signed the new version into law, asked Congress for “clarification of civil rights protections.” Republicans, meanwhile, signaled the opening the law created for discrimination. A Republican congressman declared, “The ones with traditional values are under attack all the time ... and we need to protect their rights as well.” Though he did not explicitly mention gay activists in his statement, he signaled them by alluding to groups who might keep the Boy Scouts from preserving “their moral standards.”

The editors of National Review wrote on Monday, “[the Religious Freedom Restoration Act] enjoyed wide bipartisan support until the Hobby Lobby case reminded Democrats that they care a great deal more about Obamacare and contraceptive subsidies than they do about the religious liberties of people who hold views that inconvenience the Democrats’ political platform.” But this gets the order of events exactly wrong. The law enjoyed wide bipartisan support until the Hobby Lobby case underlined its use as a weapon of discrimination rather than protection. Then the party-line divisions present in the nondiscrimination amendment vote reappeared.

The real lineage of Indiana’s law is the largely successful efforts to discriminate against gays that took place in the 1970s. Ground zero for these efforts was Miami, which in 1977 became the first major U.S. city to pass an ordinance making it illegal to discriminate on the basis of sexual orientation. In response to that act, Anita Bryant, a Christian singer and spokeswoman of the Florida Citrus Commission, organized the Save Our Children campaign to repeal the nondiscrimination ordinance.

Bryant grounded her right to discriminate in religious terms, saying, “If this ordinance amendment is allowed to become law, you will, in fact, be infringing upon my rights and discriminating against me as a citizen and as a mother to teach my children and set examples and to point to others of God’s moral code as stated in the Holy Scriptures.” The campaign was successful. Miami repealed the ordinance, and for another two decades employers, landlords, and businesses were free to discriminate against people based on their sexual orientation. Bryant’s efforts inspired other municipalities to repeal their nondiscrimination laws, and in time, to pass laws to actively protect discrimination.

But there is hope. One of the unintended consequences of Bryant’s activism was the mobilization of gay-rights activists. As the leaders of the National Gay Task Force wrote in a 1977 New York Times op-ed, “Anita Bryant and her Save Our Children Inc. are doing the 20 million lesbians and gay men in America an enormous favor: They are focusing for the public the nature of the prejudice and discrimination we face.” And in 1998, Miami successfully reinstituted its ban on discrimination based on sexual orientation, thanks to a coalition of civil rights activists and business leaders who made an economic argument against discrimination in Miami.

That same coalition is shaping up in Indiana. Brought together by the recent attempt to ban same-sex marriage in the state, Hoosier businesses and activists are working together again in opposition to the new religious freedom act. If they are successful in passing protective legislation, then the state government’s efforts to allow discrimination under the guise of religious freedom may end up bringing new nondiscrimination protections to the Hoosier state.

This article was originally published in the US News & World Report