For the sake of argument, would you not extend public accommodation laws to LGBT people?
Well, if we're going to argue about it, it seems there's only one position I could take, right?
Because those scenarios won't happen... This is IN. Please don't post improbable "facts" ala Fox News as a strawman. Native American hair styles being controversial in Indiana schools is statistically improbable at best. What about a kid who just wanted to smoke his peace pipe at school? Is that the next excuse, geez...
The situations I referred to have all been litigated. The first two were decided under the Texas RFRA, and the last was decided under the Supreme Court's pre-
Employment Division v. Smith jurisprudence, which the RFRA was enacted to "restore." (In fact, the last example was an
Indiana case.) The point is, RFRAs are not as narrow (nor their effect in particular cases anywhere near as certain) as their critics would have one believe.
I think the intent of this law matters. And it's blindingly obvious to people who live here that this is not meant to protect Native American kids or minority religious groups.
But the way RFRAs operate makes them particularly immune to considerations of legislators' subjective purposes. RFRAs are
process-oriented, not
outcome-oriented. It would be inappropriate for a judge to apply an RFRA by asking, "What would the legislature have wanted the outcome to be here?" The proper questions are those described in the law: is religious exercise substantially burdened? If so, does the state have a compelling government interest in imposing that burden, and is the burden the least restrictive means of furthering that interest?
Yes, there are reasons why extending protections to religious persons, especially religious minorities, are important. There are also reasons why we need to protect the rights of sexual minorities. If we're going to extend RFRA-like protections, legislatures should simultaneously adopt public accommodation laws as well as non-discriminations laws in employment and housing towards LGBT persons so these laws won't become a shield to deny services, employment, and housing towards LGBT people.
But, without such anti-discrimination laws, RFRAs have no effect on one's right to discriminate on the basis of sexual orientation. RFRAs create an exception from other law, but if there is no other law on point, then there's no need for an exception. You're suggesting that RFRAs, standing alone, authorize discrimination on the basis of sexual orientation. But that's false. In fact, your proposed solution--enacting anti-discrimination laws alongside RFRAs--would be the very source of the problem you pretend is inherent in RFRAs.