By Erik Eckholm with The New York Times
When the federal government adopted a religious protection act in 1993, same-sex marriage was not on the horizon.
An informal coalition of liberals and conservatives endorsed the Religious Freedom Restoration Act because it seemed to protect members of vulnerable religious minorities from punishment for the exercise of their beliefs. The federal legislation was set off by a case in which two followers of the Native American church were fired and denied unemployment benefits because they took part in ceremonies with peyote, an illegal drug.
Twenty states, including Indiana last week, have since passed their own versions of religious freedom laws.
But over time, court decisions and conservative legal initiatives started to change the meaning of those laws, according to liberal activists. The state laws were not used to protect minorities, these critics say, but to allow some religious groups to undermine the rights of women, gays and lesbians or other groups.
“The coalition broke apart over the civil rights issues,” said Eunice Rho, a lawyer for the American Civil Liberties Union. The organization, which initially supported the measures, now opposes them unless they include language ensuring that they will not be used to permit discrimination or harm.
In the 1990s, for example, in the kind of case that raised red flags for civil rights advocates, landlords cited religious beliefs, sometimes with success in court, after refusing to rent to unmarried heterosexual couples.
The clash of values erupted again after Indiana adopted its own version of a “religious freedom” act last week. Arkansas is expected to approve a similar law this week.
The furor has put Gov. Mike Pence of Indiana, who is considered a possible Republican presidential candidate, under national scrutiny. On Monday, Republican legislators in Indiana said they were searching with the governor for a possible amendment to the law to “clarify” that it does not permit discrimination against gays and lesbians.
“It is not the intent of the law to discriminate against anyone, and it will not be allowed to discriminate against anyone,” David C. Long, president pro tem of the State Senate, said on Monday at a news conference with Brian C. Bosma, speaker of the State House of Representatives.
Indiana Democrats called for an outright repeal, while gay rights groups and even the mayor of Indianapolis, a Republican, called for strong new statewide anti-discrimination laws.
Indiana has already felt the political and economic fallout of enacting the law.
The Democratic mayors of San Francisco and Seattle have said they will ban city-funded travel to Indiana. Gov. Dannel P. Malloy of Connecticut, a Democrat, has said he plans to sign a similar executive order banning state-funded travel. The rock band Wilco said it had canceled a show scheduled for May 7 in Indianapolis.
In North Carolina on Monday, Gov. Pat McCrory, a Republican, said in a radio interview that he would not support a similar bill under consideration in his state’s Republican-dominated legislature.
Also Monday, two Republican White House hopefuls, Jeb Bush and Ted Cruz, defended the law.
“I think Governor Pence has done the right thing,” Mr. Bush told the conservative talk show host Hugh Hewitt. “I think once the facts are established, people aren’t going to see this as discriminatory at all.”
While these laws do not mention gays or discrimination, the timing is no accident. As bans on same-sex marriage fall, those promoting such laws have made no secret of their desire to protect conservative Christian individuals and businesses, such as caterers and florists, who choose not to sell services to same-sex couples. This is not discrimination, the supporters say, but protecting religious liberty.
But a denial of service by public business is the essence of discrimination, civil rights groups respond. They add that these latest religious freedom laws include language that could open the way to even wider discrimination.
“With courts and legislatures ending bans on same-sex marriage, some who oppose it have turned to Plan B, the use of religion,” said Jennifer C. Pizer, director of the Law and Policy Project at Lambda Legal, a gay rights group. “Essentially, they are saying that if same-sex couples can come into the public arena, we want the right to selectively build a moat around ourselves.”
Christian conservatives are adamant that the laws are merely efforts to protect their faith and that this should not be called discrimination.
“We do not ask the government to bless our doctrinal convictions, or to impose them on others,” said Russell Moore, who heads the policy arm of the Southern Baptist Convention. “We simply ask the government not to set itself up as lord of our consciences.”
Starting with the federal act in 1993, all of the religious protection laws establish similar basic structures. A person or, according to last year’s Hobby Lobby decision in the Supreme Court, even a large company that is controlled by a religious family can challenge a governmental action on the ground that it imposes a significant burden on one’s faith.
A judge must then decide whether the action was taken in furtherance of a “compelling governmental interest” and whether it is the “least restrictive” means of furthering that interest.
In a January decision, the Supreme Court ruled that under the 1993 law, a Muslim man in federal prison could keep a short beard.
That is a prototypical example of what most saw as the original purpose of the act, said Katherine M. Franke, the faculty director of the Public Rights/Private Conscience Project at Columbia Law School.
Contrary to the assertion by Governor Pence, the Indiana law, Ms. Franke said, is not identical to the federal law or the version supported years ago by President Obama when he served in the Illinois State Senate.
She and other legal experts said the Indiana law expands the parties who could ask for relief on religious grounds to include a wider range of corporations, if individuals with “substantial control” of the business share the same religious beliefs.
The Indiana measure also grants parties the right to bring legal action to prevent a “likely” burden on religious belief, even before any burden is imposed. And it expands the situations in which the protection could be invoked to include disputes between private parties engaged in lawsuits, even if they do not involve any direct actions by a government agency.
Robert Katz, a professor at Indiana University’s Robert H. McKinney School of Law, said that Indiana already had strong constitutional protections for religious belief and that the new law seemed to result more from fear of same-sex marriage than from any demonstrated need.
Whether it will result in many legal cases is unclear, he said, but its impact has already been felt because “the law communicates values.” “It communicates to gay and lesbian people that their rights could potentially take a second seat,” he said. “It is part of the culture wars.”
Richard Fausset and Richard Pérez-Peña contributed reporting.