The Indiana RFRA

Since the federal RFRA law was passed in 1993, there have been a number of controversial cases that had ties to the legislation, from Native Americans who smoked peyote as part of religious ceremonies to the more recent Hobby Lobby case, where the Supreme Court ruled that a company that had religious objections to contraception could choose not to offer contraceptive coverage to employees.

But many of those cases were seen as affecting only a small number of people or the employees of an individual company. Increasingly, RFRA laws are being linked to businesses that don't want to participate in same-sex weddings and desired a legal protection for refusing service.

Although many RFRA supporters strongly deny that there is any intent to discriminate, some of its biggest supports have touted the legislation as a way to protect religious business owners from being required to serve those they disagree with.

Advance America, which describes itself as "Indiana's largest pro-family, pro-church, pro-private and home school, and pro-tax reform organization," framed the RFRA in Indiana as a way to protect Christian businesses who would decline to participate in same-sex marriage ceremonies. At the time the initial RFRA bill was passed in Indiana, Eric Miller, the group's executive director said, "It was … important to pass [the RFRA law] in order to help protect churches, Christian businesses, and individuals from those who want to punish them because of their Biblical beliefs!"

The backlash

The business community quickly made it clear that it disagreed. When Gov. Mike Pence signed Indiana's RFRA bill on April 2, a number of major corporations, including Apple, Angie's List, and Salesforce, all denounced the new law and threatened to boycott the state. A wide range of corporations, both inside and outside the state, said any kind of discrimination would be bad for business, as well as for recruitment and retention of employees.

In a March 29 Washington Post opinion piece, Apple CEO Tim Cook wrote that the RFRA bills in Indiana and Arkansas would allow people to cite their religious beliefs in refusing service to customers.

"These bills rationalize injustice by pretending to defend something many of us hold dear. They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality," Cook wrote.

A matter of timing

The timing of the controversy also helped to create national headlines about the Indiana law. The NCAA Final Four basketball championship was set to take place in Indianapolis in early April. As fans and basketball luminaries called for the NCAA to consider moving the event, the group, which is headquartered in Indianapolis, quickly sought to distance itself from the new law.

The national opposition caused the state to go into damage-control mode. "It was a firestorm there for about a week," said Kevin Brinegar, president and CEO of the Indiana Chamber of Commerce. "There was mounting consensus that we should pass follow-up legislation to clarify that there was no way Indiana's RFRA's legislation could be used for discrimination."

State legislators ended up doing just that, quickly passing a follow-up bill that said the law could not be used to discriminate against individuals.

Brinegar, who noted that his group had concerns about the bill from the moment it was introduced, said that social media played a major role in solidifying the opposition to Indiana's RFRA law.

"Frankly the power of social media helped this issue go viral," Brinegar said. "People were clearly upset. We got more than 600 phone calls and emails, mostly from people out of state. They wanted to express their concern and outrage based on what they were told, and they chose the chamber of commerce—I can only imagine what the governor's office received." He added that in 34 years working with the Indiana legislature, he had never been involved with such a controversial issue.

The record of RFRA

Brinegar said that although he would have concerns about RFRA if there was even the appearance of discrimination in how the law was implemented, he thought there was little likelihood of significant discrimination. And some legal scholars seem to agree.

Thomas Berg, a professor with the University of St. Thomas (Minnesota) School of Law, was one of 16 legal experts from across the country who signed a letter in support of Indiana's RFRA law, saying the protections it offered were valuable, and the likelihood of discrimination was low. The letter notes that in most cases, RFRAs protect individuals from overly-broad legislation or regulation that might impede the free practice of religion.

"State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths," the letter said. "They encourage government officials and religious minorities to talk to each other and work out mutually agreeable solutions."

Berg noted that up to 30 states, in addition to the federal government, have some sort of religious freedom law, and they have not led to discrimination against gays or other groups. "On both sides there's been a misunderstanding of RFRA and the public debate on this  has not been very informed," Berg said. "Any law that would justify widespread discrimination, we should be worried about. The record of RFRAs doesn't support that concern."