Kane: In Indiana, religion is already free

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Noah Kane, Columnist

Indiana’s Religious Freedom Restoration Act, known as RFRA, is one of the more strangely-titled pieces of legislation I have ever encountered. The law’s moniker suggests that Hoosiers’ religious freedom is under attack. I had not been aware of this. Setting aside for a moment the concerns that the law raises about LGBT discrimination — I’ll return to those — it’s worth taking stock of the state of religious liberty in Indiana.

According to a February 2008 report from the Pew Forum on Religion & Public Life, 80 percent of Indiana residents are Christian, another four percent are members of other religions and 16 percent are unaffiliated. If religious discrimination is occurring in the state, these statistics suggest that it would have to be at the hands of a vocal and powerful irreligious minority. Mike Pence, the state’s governor, has described himself as a “Christian, conservative and Republican, in that order.” Somehow, despite his worries that religious Hoosiers would not be “afforded full protection under Indiana law” without the passage of RFRA, he was elected to the state’s highest political office while casting his religion as central to his identity.

In Pence’s Wall Street Journal op-ed on Tuesday, his claims about religious freedom hinge on three key examples that are confounding in their rhetorical absurdity, since the protections he cites are drawn from federal law.

First, he cites the case of a Native American kindergartener from Texas who was forced to cut his hair — which had important religious value to him — in order to comply with school policy. According to Pence’s own research, the boy won his case using an argument based in federal law. Lost on Pence is the fact that a Texas version of the RFRA was not necessary for the boy’s religion to be protected.

Stumbling onward, Pence claims that recent prominent court cases involving national retailer Hobby Lobby and the University of Notre Dame further highlight “government infringement on deeply held religious beliefs.” This “infringement” took the form of forcing the institutions to provide their employees with insurance policies that covered various forms of birth control. Hobby Lobby won its Supreme Court case and can now deny its employees contraceptives at will. Again, according to Pence’s own reasoning, this decision hinged on federal law — not on a state-level RFRA.

Notre Dame is actually able to deny its employees contraceptive coverage under the Affordable Care Act. Thanks to a provision of the ACA, the University can fill out a form that exempts it from the requirement to cover birth control. Not satisfied with the fact that Obamacare explicitly allows it to fulfill its religious obligations in this way, Notre Dame went to court in an effort to prove that the form itself was an example of religious discrimination. The U.S. Supreme Court recently struck down a lower court’s finding against the school and now the Fighting Irish are returning to court to portray the law’s religious tolerance as discrimination.

Religion — in this case, Christianity — might face challenges from time to time, but it’s clear that it tends to overcome them. The examples Pence references suggest that any assault on freedom of religion in Indiana will fall flat, as that freedom is already protected by existing federal laws.

This discrepancy raises an important question: why would a conservative governor sign into law an unnecessary piece of legislation? Aren’t Republicans supposed to be champions of small government and limited restrictions on individual behavior? It’s no surprise, then, that many negative reactions to the RFRA suspect that the law has ulterior motives, namely discrimination against the LGBT community. Because most Indiana municipalities do not legally protect LGBT people from bigotry, the law could likely be used to justify homophobia on the part of business owners. Several Indiana lawmakers have proposed changes to the RFRA that address these concerns.

“Fixing” the RFRA — a process that relies on a vote and is by no means guaranteed — will ironically do little to remedy the fact that the vast majority of Indiana’s LGBT population has no protection under the law. Even if they wish to do nothing more than save political face, Indiana lawmakers should be commended for responding to public criticism. But the criticism should not end — it should intensify. If Hoosier politicians are actually passionate about addressing injustice, they should do so in a way that has an impact beyond a narrow statute and affects a population whose life, liberty and happiness is actually in danger.

Noah Kane is a Weinberg senior. He can be reached at [email protected]. If you would like to respond publicly to this column, send a Letter to the Editor to [email protected].