Fox News host Gretchen Carlson defended Indiana's anti-LGBT “religious freedom” law, inaccurately equating it to existing federal legislation to claim the bill is harmless and necessary to protect Christians from discrimination.
On the March 25 edition of The Real Story with Gretchen Carlson, Carlson and her guests discussed Indiana's recently passed Religious Freedom Restoration Act (RFRA), a law that creates a broad license for individuals and business owners to cite their religious beliefs as a defense against charges of discrimination. Businesses, religious leaders, and even the Republican mayor of Indianapolis have all condemned the state's RFRA law for its potential to encourage discrimination against LGBT people in particular.
During the segment, Carlson and her guests falsely equated Indiana's RFRA with the federal Religious Freedom Restoration Act , which was originally passed in 1993 to prevent the government from passing laws that substantially burdening a person's free expression of religion, with a few exceptions. In 1997, the Supreme Court ruled that the federal RFRA did not apply to the states, resulting in many states passing their own local RFRAs:
But Indiana's SB 101, is not, as Carlson and her guests assert, an exact replica of the federal RFRA. A February 27 letter by 30 legal scholars expressing their concern over the proposed Indiana RFRA explains the distinction between the SB 101 and the 1993 federal law:
The state RFRA bills do not, in fact, mirror the language of the federal RFRA.
The definition of “person” under the proposed RFRA differs substantially from that contained in the federal RFRA, affording standing to assert religious liberty rights to a much broader class of entities than that currently recognized by federal law.
Unlike the federal RFRA, Indiana's RFRA contains an extremely broad definition of “person” that includes organizations, corporations, or companies that are: “compelled or limited by a system of religious belief held by an individual or the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.”
As Buzzfeed also reported:
The Indiana bill is broader than federal law. While the Indiana bill says that a “governmental entity may not substantially burden a person's exercise of religion,” it also applies those rules to businesses and interactions between private parties “regardless of whether the state or any other government entity is party to the proceeding.”
Carlson and her guests also downplayed the opposition against RFRA by noting that the federal bill was originally passed with bipartisan support. But the unforeseen consequences of RFRA have caused many democratic legislators who originally voted on RFRA to withdraw their support of the law. As the same legal scholars explain in their letter (emphasis added):
This parallel between support for the federal RFRA and the proposed state RFRA is misplaced. In fact, many members of the bipartisan coalition that supported the passage of the federal RFRA in 1993 now hold the view that the law has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law. As a result, the legislators who voted on RFRA have distanced themselves from their initial backing of the legislation.
As legal and religious scholar Dr. Jay Michaelson noted, these unintended consequences amount to a broad license to discriminate against LGBT people, because state RFRA laws could allow “individuals and businesses [to] exempt themselves from anti-discrimination laws by proffering religious objections to them.”
Portraying Indiana's RFRA as benign legislation identical to the “bipartisan” federal law isn't just inaccurate journalism. It is a part of Fox's larger role in promoting the narrative of Christian persecution to support the passage of a number of state RFRAs now being considered in states across the country. Expect to see Fox continue to misrepresent RFRA as a harmless law protecting “religious liberty” while ignoring the fact that these bills are actually the product of powerful anti-LGBT organizations lobbying to legalize anti-LGBT discrimination.