Jeb Bush Is Confused About Religious Freedom

Jeb Bush is defending Indiana Governor Mike Pence’s faulty defense of his state’s recently enacted Religious Freedom Restoration Act. Like Pence, Bush is wrong, but Bush’s elaboration laid bare his considerable confusion about the issue. The Washington Post reports:

“I think Governor Pence has done the right thing,” Bush said on “The Hugh Hewitt Show”. “Florida has a law like this. Bill Clinton signed a law like this at the federal level. This is simply allowing people of faith space to be able to express their beliefs, to have, to be able to be people of conscience. I just think once the facts are established, people aren’t going to see this as discriminatory at all.”

Bush added that “There are many cases where people acting on their conscience have been castigated by the government. And this law simply says the government has to have a level of burden to be able to establish that there’s been some kind of discrimination. We’re going to need this. This is really an important value for our country…in a diverse country, where you can respect and be tolerant of people’s lifestyles, but allow for people of faith to be able to exercise theirs.”

Bush is wrong that Florida’s RFRA and the federal RFRA have laws “like” Indiana’s. As I explained yesterday, a crucial difference between the Indiana law and a state law like Florida’s (and the federal RFRA) lies in statutory definitions. The Indiana law provides that a “person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

What’s more, as the Religious Action Center of Reform Judaism, which opposes the law, explains, the bill represents a codification of troubling aspects of last year’s Hobby Lobby case. “This Indiana law, unlike federal RFRA, codifies the notion that for-profit corporations may avail themselves of the religious freedom rights formerly only accorded to individuals and religious non-profits,” Rachel Laser, the group’s deputy director, said in a statement. “In fact, it goes even further than the Hobby Lobby decision because it extends this right beyond closely held corporations to all corporations.”

As the ACLU of Indiana points out, “a critical difference” between Indiana’s RFRA and the federal statute is that the new Indiana law “would allow for-profit businesses, employees and individuals—basically anyone—to assert a legal claim or defense of free exercise of religion in a legal proceeding, regardless of whether the government is a party to the proceeding. This is virtually without precedent.” (emphasis mine)

Pence, though, in a Wall Street Journal op-ed yesterday, repeated his claim, “In fact, the Religious Freedom Restoration Act reflects federal law, as well as law in 30 states nationwide.”

Indeed the federal RFRA contains no such language permitting the statute’s use by corporations, or by parties in private lawsuits, nor does Florida’s RFRA, which was passed in 1998. Nor does the RFRA in New Mexico, which was enacted in 2000. In 2013, in the Elane Photography case, the New Mexico Supreme Court ruled that a photographer could not raise the state’s RFRA as a defense in a lawsuit, brought under the state’s anti-discrimination law by a lesbian couple denied service by the photographer precisely because, in the court’s words, New Mexico’s RFRA “is inapplicable in this case because the government is not a party.” (emphasis mine)

As I discussed yesterday, because proponents of heightened RFRAs claim that proprietors’ religious freedom is being infringed upon by gay and lesbian couples seeking wedding or commitment ceremony services, it stands to reason that enacting another RFRA “like” the federal one, or “like” the RFRAs in New Mexico or Florida, would not provide the legal relief they’re looking for.

The rest of Bush’s argument is unintelligible. He said, “this law simply says the government has to have a level of burden to be able to establish that there’s been some kind of discrimination.” Does he mean the government should have a high burden to establish there has been discrimination against LGBT people, thus allowing religion to trump LGBT discrimination claims? Does he mean that the government may not impose a substantial burden (the standard of RFRA) on religious practice?

The other presumed and declared Republican presidential hopefuls also came to Pence’s defense. Ted Cruz, not surprisingly, was the most vociferous, issuing a statement reading, in part, that “we are facing a concerted assault on the First Amendment, on the right of every American to seek out and worship God according to the dictates of his or her conscience. Governor Pence is holding the line to protect religious liberty in the Hoosier State.” Scott Walker, also not surprisingly, was more subdued, issuing a statement through a spokesperson: “As a matter of principle, Governor Walker believes in broad religious freedom and the right for Americans to exercise their religion and act on their conscience.” (In other words, unlike Bush, Walker has not yet passed or failed the test of demonstrating his understanding of basic legal principles, punting, as it were, on a more lengthy explanation.)

Marco Rubio offered perhaps the most clear and unambiguous support for permitting business owners to refuse service to LGBT people, acting, in a way, as Pence’s more honest spokesperson. Yesterday on Fox News, Rubio said:

The issue we’re talking about here is, should someone who provides a professional service be punished by the law because they refuse to provide that professional service to a ceremony that they believe is in violation to their faith. I think people have a right to live out their religious faith in their own lives. They can’t impose it on you and your life, but they have a right to live it out in their own lives. And when you’re asking someone who provides professional services to do something or be punished by law that violates their faith, you’re violating that religious liberty that they have.

One thing is clear: religious conservatives who wanted to hear where the candidates stand on this issue are getting their wish. Welcome to the religion controversies of the 2016 campaign.