Original RFRA Drafter Admits Discriminatory Intent


Like a lot of other people, I’ve been following the controversy surrounding Indiana’s SB 101, their state level RFRA bill that’s designed to allow businesses to discriminate against LGBT people on religious grounds.

Indiana’s RFRA has been compared frequently to the federal RFRA, both by supporters of Indiana’s law who claim that it’s no different thanwhat President Clinton signed into law in 1993, and opponents who point out
that it’s much broader than the federal RFRA. What most people don’t realize
about RFRA, however, is that while it was a popular piece of legislation that
passed with bipartisan support, the religious right had their fingerprints on
it from the beginning and always intended it to be used for much broader purposes
than most of the bill’s supporters realized.

The coalition that drafted the original RFRA was either
chaired or co-chaired (alternate accounts on
HSLDA’s website say both) by HSLDA founder and then-president Michael Farris.
Farris was one of the drafters of the
bill, and takes credit for organizing the broad coalition that supported its

HSLDA’s magazine The Home School Court Report describes
it thus:

“After the signing, President
Clinton spoke with [HSLDA’s representative at the signing Doug] Phillips and
extended his gratitude for the role Farris played in the RFRA drafting and
coalition-building process. “Tell Mike,
I really appreciate the work he did drafting [the RFRA]
,” President Clinton
told Phillips.”
(emphasis added)

At the time Clinton signed RFRA into law, the Court Report quoted
HSLDA staff attorney Jordan Lorence as saying that,

“[A]s American culture and public
policy grow more and more hostile to Biblical concepts and practices, the RFRA
will help shield Christian families, and all other peoples of faith, from
having to choose between surrendering their religious beliefs or suffering loss
for standing true to their beliefs.”

My astute readers should be able to recognize that language as
a culture war dog-whistle from a mile away. Indeed, Jordan Lorence now works for
the Alliance Defending Freedom, where he’s spearheaded the string of cases from
photographers, bakers, and florists all arguing that they have a religious
freedom right to discriminate against LGBT people.

We don’t need to rely on dog-whistles, however. HSLDA has
repeatedly stated that one of the purposes of the federal RFRA was to allow
religious-based discrimination against LGBT people.

Describing what RFRA means to the average homeschooler:

“But consider what it means for
religious people in other contexts: The government wants to say you can’t have
a church policy that says you can only have male pastors. Or maybe your church
doesn’t want to hire homosexuals. Or your support group doesn’t want to hire
homosexuals. Then it would have an impact because the rights of organizations
including churches are going to be judged on religious liberty principles
–Michael Farris, Marking the
Milestones: The Good, the Bad, the Inspiring

Explaining why a proposed Religious Liberty Protection Act
(RLPA) was an insufficient
for RFRA because it would not protect:

“Christian landlords who are told by
local law that they may not “discriminate” against unmarried couples or
homosexual couples in renting out an apartment in their home,” or,
“Small Christian-owned businesses
that are forbidden by local law from firing employees for openly immoral
–Home School Court Report: Religious Liberty
Protection Act: Does the End Justify the Means
, May/June 1998

That brings us to yesterday, when, writing specifically about the Indiana law and his intent in drafting the federal RFRA, Michael Farris posted
the following
to his Facebook page. (screenshotted because his posts have a
way of disappearing after I blog about them).


Oh noes, how dare the homosexuals ask to be left alone! Look
at them there eating crackers like they own the place, don’t they know they’re
supposed to be cowering in a closet in fear of the cops busting in and hauling
them off to jail?

When Michael Farris talks disparagingly about LGBT people
asking to be left alone, he’s talking about LGBT people wanting the police to
stop raiding gay bars and arresting everyone inside. About not wanting to be
forced to endure chemical castration like Alan Turing or prison like Oscar
Wilde. About wanting to walk around in public without fear of being beaten,
tied to a fence and left for dead only to have your funeral picketed by people
with “God Hates Fags” signs. About not wanting to be subjected to “corrective

That, Michael Farris, is what asking to be left alone means.

In that one line he trivializes centuries of indignities,
abuses, and torture that no human being should have to endure. As if asking for
even the most bare minimum of basic human rights is too much to ask of society.

And no, Michael Farris, it’s not about “demanding the right
to punish anyone who refuses to join their celebration.” It’s asking for equal
protection under law. One of the bedrock principles of American law, and
protection enjoyed by all other American citizens under our civil rights laws.

But Michael Farris already knows that, that’s why nearly two
decades ago, before any state had marriage equality, HSLDA specifically stated that RFRA was needed in order to overcome
nondiscrimination laws.

The smoking gun, though, is in the second half of his post.


See that last paragraph? Read it again.

“The state and federal RFRA would not allow a state or local
antidiscrimination law (e.g. a gay rights law) to be applied to a religious
person or entity without prevailing over a very high legal standard.”

Saying that RFRA would “not allow a state or local antidiscrimination
law … to be applied to a religious person or entity
without prevailing over a very high legal standard,” is another way of saying
that religious people and entities are
allowed to discriminate. More specifically, to discriminate against LGBT people.

Cloak it in religious language all you want, but the
religious freedom that RFRA is intended to protect is the freedom to discriminate.
And not just the freedom to discriminate in baking wedding cakes, making floral
arrangements, or taking photos either. As was made clear in the quotes above,
that freedom to discriminate was always intended to extend to denying LGBT
people a place to live and allowing businesses to fire them.

I don’t know how you can get any clearer. This is one of the
drafters of the original federal RFRA flat out saying that RFRA had
discriminatory intent.

Discrimination in the name of religion is still still discrimination and it’s still wrong.


04-02-2014 Note: My followup post, complete with video of Farris’ appearance on Hannity can be found here.


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