- The Washington Times - Sunday, March 29, 2015

Indiana’s religious freedom law drew an attack Sunday from the White House even though Indiana Republicans say President Obama voted in favor of similar legislation as an Illinois state senator in 1998.

White House spokesman Josh Earnest didn’t deny that Mr. Obama voted to pass the Illinois Religious Freedom Restoration Act but said the Indiana law appears to “legitimize discrimination.”

“When you have a law like this one in Indiana that seems to legitimize discrimination, it’s important for everybody to stand up and speak out,” Mr. Earnest said on ABC’s “This Week.”

Meanwhile, Indiana Gov. Mike Pence, a Republican who signed the bill last week, came out swinging Sunday against what he described as an “avalanche of intolerance” aimed at the legislation, which gay rights organizations say allows discrimination based on religious convictions against homosexuality. The law has led to numerous actual and threatened boycotts of the state, even though the federal government and 19 other states have such laws.

“Is tolerance a two-way street or not? There’s a lot of talk about tolerance in this country today having to do with people on the left,” Mr. Pence said. “But here Indiana steps forward to protect the constitutional rights and privileges of freedom of religion for people of faith and families of faith in our state, and this avalanche of intolerance that has been poured on our state is just outrageous.”

“And I’m not going to take it lying down,” the governor said.

He noted that Indiana is something of a bandwagon-jumper when it comes to the Religious Freedom Restoration Act. Before Indiana, 19 states enacted similar laws, as did the federal government with the 1993 Religious Freedom Restoration Act signed by President Clinton and passed with only a few opposition votes in Congress. Courts have extended religious freedom protections in another 11 states.

After Mr. Clinton signed the federal act in 1993, “some 19 states followed that, and after last year’s Hobby Lobby case, Indiana properly brought the same version that then-state Sen. Barack Obama voted for in Illinois,” Mr. Pence said.

Indiana Senate Republicans made the same point in a Thursday press release, saying, “The bipartisan respect for religious freedom has also carried over to the votes for most state-level RFRA’s. For example, when President Obama was an Illinois State Senator in 1998, he voted for Illinois’ RFRA.”

Mr. Obama served as an Illinois state senator from 1997 to 2004. The Illinois act took effect in 1998.

Mr. Earnest dismissed the argument, saying, “If you have to go back two decades to try to justify something that you’re doing today, it may raise some questions about the wisdom of what you’re doing.”

The governor, who has been mentioned as a dark-horse candidate for the Republican presidential nomination next year, has moved to head off calls for an economic boycott by contacting officials with several companies and organizations that have expressed concerns about doing business with Indiana, including the NCAA and Salesforce.com.

Those include the NCAA, which is holding the Men’s Final Four in Indianapolis next weekend and has headquarters there, and Salesforce.com CEO Marc Benioff, who announced on Twitter that he would “dramatically reduce our investment in IN.”

“[W]e’ve been doing our level best to correct the gross mischaracterization of this law that has been spread all over the country by many in the media,” Mr. Pence said. “Frankly, some of the media coverage of this has been shameless and reckless, and the online attacks against the people of our state, I’m just not going to stand for it.”

Already, however, the state is facing resistance. The mayors of San Francisco and Seattle announced that they are curtailing business-related travel to Indiana in response, and hundreds of people turned out for a rally Saturday in Indianapolis against the Religious Freedom Restoration Act.

Angie’s List CEO Bill Oesterle announced Saturday that he was putting on hold a $40 million planned expansion project in Indiana “until we fully understand the implications of the freedom restoration act on our employees, both current and future.”

Mr. Earnest said “the fact is Gov. Pence is in damage control this morning, and he’s got some damage to fix.”

“We’ve seen business leaders all across the country say they’re reluctant to do business in Indiana, not because they don’t like the people in Indiana, but because of this law,” Mr. Earnest said. “Because this law could make it more likely that the customers of those businesses and the employees of those businesses are now more likely to be discriminated against.”

Although Mr. Pence said he had no plans to change the measure, he told The Indianapolis Star that he was in discussions with state legislators in an effort to “clarify the intent of the law.”

In recent years, Christian business owners have taken to court to fight laws that they say violate their religious freedom, including the Affordable Care Act’s birth control mandate and anti-discrimination laws that compel them to provide services for same-sex weddings if they serve male-female weddings.

Mr. Pence has frequently cited the Hobby Lobby case as an impetus for the bill, but refused to speculate Sunday on whether the law would cover Christian retailers in the wedding business.

Not all religious freedom bills are identical, but they share the goal of prohibiting laws that place a “substantial burden” on an individual’s free exercise of religion, barring a “compelling government interest.” In those cases, the government must use “the least-restrictive means” of advancing that interest.

This balance also had been Supreme Court doctrine until a 1990 decision written by conservative Justice Antonin Scalia on peyote use by American Indian churches.

But as Christian photographer Elaine Huguenin can attest, such laws offer no guarantees. New Mexico passed a religious freedom act in 2000, but the New Mexico Supreme Court ruled against Ms. Huguenin in 2013 after she was sued by a gay couple for refusing to work for their wedding. The court said the Religious Freedom Restoration Act applies only to cases in which the government is a party.

Critics point out that the Indiana act is broader than other state and federal laws, most significantly because it applies “regardless of whether the state or any other governmental entity is a party to the proceeding.”

At the same time, some courts have interpreted the federal religious freedom restoration act to apply to lawsuits between individuals, as South Texas College of Law assistant professor Josh Blackman noted on his website.

Mr. Blackman cited an April 2013 article in the Virginia Law Review by Shruti Chaganti, who said, “The circuits are split as to whether RFRA can be claimed as a defense in citizen suits — suits solely between private citizens in which the government is not a party.”

Arkansas and Georgia, are considering similar bills this year. Arizona Gov. Jan Brewer, a Republican, vetoed such a bill last year under threats of a state boycott, although Arizona enacted a religious freedom law in 2012.

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