Ever since the Supreme Court legalized gay marriage last summer, contentious debates over how states can protect the religious freedoms of businesses and organizations have been underway. States like Indiana, Missouri, and West Virginia have been proposing religious liberty laws that have led to strong reactions on all sides of the aisle.

On Wednesday morning, after an impressive 39-hour filibuster, Republicans in the Missouri Senate voted to end the discussion on a bill that could allow religiously affiliated organizations to refuse to participate in activities that could be considered condoning or participating in same-sex marriage. The bill, Senate Joint Resolution 39, proposes an amendment to Article I of Missouri’s state constitution that would prohibit penalizing organizations for refusing services if they go against the organization’s religious beliefs.

Democratic Senators in Missouri used their filibuster to stall the bill from going to a vote while harping on topics “including other bills, Donald Trump, slick roads, soft drink ads in foreign countries, and ‘Jesus sightings’ in foreign objects,” an NPR affiliate reported. After Republican senators voted to end the filibuster, they subsequently voted in favor of placing the resolution on the ballot this November in a vote of 23-9. The bill still has to go to the house before the resolution can be placed on the upcoming ballot, at which point Missouri voters would decide on the amendment themselves.

Bills like SJR 39 have been popping up left and right across the country as local governments try to protect  people’s First Amendment right to religious freedom. But these bills have sparked a lot of controversies. Why? Many people claim that they are laws focused on discriminating against gay people, instead of protecting religious liberty as they claim.

Around a year ago, Indiana passed a law similar to the Missouri resolution that allows businesses to cite their adherence to religious beliefs as a defense in civil suits–allowing them to refuse service to particular people or groups if doing so violates their religious beliefs. One of the biggest concerns about Indiana’s law, in particular, is its vague wording and the ambiguous nature of its purpose. While Indiana Governor Mike Pence claimed that the bill was in no way about discrimination, it is really difficult to differentiate between the intention behind the bill and its impact until you can see how it plays out in practice.

Celebrities have been jumping to defend gay marriage in comedic videos poking fun of religious freedom laws and tweets supporting the movement to prevent sexuality-based discrimination.

If you really and truly want pizza for your gay wedding in Indiana… We will make it for you. @donald_faison pic.twitter.com/y91qIkVoyt

— Zach Braff (@zachbraff) April 3, 2015

And, of course, what would a discussion of policy be without acknowledging its impact on the current presidential race. Candidates are using these religious freedom laws as talking points to entice voters, especially those on the right of our political spectrum. After Indiana’s law passed but similar bills were shut down in other states, Ted Cruz said:

On my first day of office, I will instruct the Department of Justice and the IRS and every federal agency that the persecution of religious liberty ends today

Yes, it’s tempting to want to stand up for religious freedom in our country, especially when that freedom is guaranteed by the Constitution, but when the fiercest and most frequent claims of persecution come from middle-aged, white catholic men, it kind of confuses the issue.

Is baking a pizza for a gay wedding really the crux of an American war on religion? Probably not. Should we be watching out for religious minorities to protect their ability to coexist in our complex religious landscape? Definitely. Is enacting bills to protect a cake baker from cake baking for gay couples really the hard hitting way to protect the minority religions that are actually being persecuted? Almost definitively not.

Let’s follow in the footsteps of West Virginia, who voted down a religious liberties bill after backlash claiming that it was discriminatory. And Georgia, who dismissed a bill when their Republican governor acknowledged it to be unnecessary for protecting religious freedom. It’s time to to support government action that–while standing up for freedom of religion and beliefs–ultimately upholds protection from discrimination for all of our citizens.

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

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Republican Presidential hopeful Ted Cruz got into a back-and-forth with actress and LGBTQ rights advocate Ellen Page on Friday. She confronted him at a barbecue he was hosting before a religious freedom rally in Iowa as part of a show she’s working on with Vice. Page was clad in a hat and oversize sunglasses, so Cruz clearly didn’t recognize her as the actress who starred in hits like “Inception” and “Juno.” Watch the lively exchange below:

Page, who came out last year, particularly focused her questioning on protections for LGBTQ people, bringing up issues like the fact that gay and trans employees are legally able to fired by their employers in many places. However throughout the exchange, Cruz showed a dogged unwillingness to acknowledge that protections for LGBTQ individuals could be improved, instead focusing almost unilaterally on the concept that Christians are being persecuted in the United States for their faith. He stated: “Well, what we’re seeing right now, we’re seeing Bible-believing Christians being persecuted for living according to their faith.”

While Cruz probably isn’t used to being confronted by popular young actresses, the answers he gave are consistent with a point of view that he (and some of the other candidates) have been sticking to resolutely–the idea that the conversation about LGBTQ protections should take a backseat to one about religious persecution of Christians. Now that acceptance of LGBTQ Americans has reached an all-time high, and gay marriage has been legalized via Supreme Court decision, arguments about “religious freedom” appear to be the new hot topic that only narrowly disguises the disgust Cruz has for LGBTQ protections.

But it’s a ridiculous argument. No one is arguing that Christians should be “persecuted” for not supporting LGBTQ rights–unless you define persecution as ridiculously narrowly as Cruz does. At the “Rally for Religious Liberty” he hosted after the barbecue where had the run in with Page, he featured various citizens who had supposedly had their religious liberties trampled upon by the government. These included couples who were fined amounts like $1000 or $5000 for not serving gay couples at their businesses. There’s also the case of a fire chief who was forced to step down in Georgia after he self-published a book calling homosexuality a “sexual perversion,” although the mayor pointed out that it was his overall conduct–including the fact that he didn’t have the permission to publish the book–that led to his termination.

But none of those things are strictly persecution. Persecution is defined by the International Criminal Court as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” While fines and firings are unfortunate, they don’t appear to fit the definition of Christian persecution.

As Rick Unger wrote in a Forbes op-ed:

In truth, even the most ardent evangelical should be able to summon the logic required to realize that using the Constitution to resolve disagreements and conflicts between Christian beliefs and the belief structures of their fellow Americans who think differently is hardly an act of persecution. Rather, these efforts are simply an act of fealty to our founding document and the men who wrote it—most of who were, themselves, Christian believers.

Yet religious persecution remains what Cruz is so worried about, to the point that he couldn’t even have a sensical argument with Page without bringing it up. We should strive to ensure that religious liberty is always protected; regardless of whether you think it’s currently under attack right now. But it’s not a mutually exclusive conversation. Other aspects of the debate over LGBTQ rights that Cruz brought up to Page, such as ISIS’s execution of gay people, deserve recognition. But until Cruz recognizes that we can talk about religious freedom and LGBTQ rights without sacrificing either, there’s going to be a lot more awkward barbecues.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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One of the most recent applications of Indianapolis’ new Religious Freedom Restoration Act (RFRA) is not exactly what supporters of the bill expected when Governor Mike Pence signed it into law in March. The bill was designed to ensure that personal religious liberties are not infringed upon, seeking to reflect a federal bill of the same name. Following this decision, a new church named the First Church of Cannabis, sought to gain recognition as a religious group. Its founder, Bill Levin, recently received IRS certification that it is officially a nonprofit charitable organization. This group, created in Indiana, plans to have its first service on July 1, which Levin says will include smoking marijuana. There’s just one problem: marijuana is illegal in Indiana. However, since this is in the context of a religious service, Levin believes he has the right to smoke marijuana without having his religious liberties infringed upon. This claim as a church will have to be defended legally, but Levin, in an interesting application of the new law, is pressing on with plans for the July 1 meeting, which is when RFRA takes effect.

Since its passing, the Indiana RFRA bill been very controversial, with individuals, businesses, and even government officials from other states stating their concerns that its language would allow discrimination against LGBT citizens for religious reasons. Although Pence oversaw a change to the law on April 4 that added a section saying that it cannot supersede local laws preventing discrimination based on sexual orientation and gender identity, many local Indiana municipalities do not have such anti-discrimination laws. Also, despite what some proponents of the bill have argued, Indiana’s RFRA bill is not the same as its federal counterpart. Before this bill, and currently in most states, laws that are neutral and generally applicable are only subject to a “rationality review,” and religious objections would be less likely to overrule basic laws. Under Indiana’s bill, even neutral and generally applicable laws are now subject to “strict scrutiny” and allow for religious objections to such laws.

Despite these issues, there is still a lot of support for the bill, especially among conservative media. Most proponents argue that it will not be used for discrimination, but rather it will protect religious observers from being forced to act against their faith. On his Fox News show, Todd Starnes argued that the Indiana bill does not allow for discrimination, although the language of the bill does seem to allow it. He mentions that “bakers, photographers, wedding planners, even pastors” are being attacked “simply because they choose to live out their religious beliefs.” In a heated (and not very productive) discussion on his show, Sean Hannity and two of his guests stated their fears of infringement upon religious rights, repeatedly arguing that discrimination is not the issue at hand. While many have stuck to this position, some, like constitutional lawyer Michael Farris, admit that the provision protects the practice of faith to the point of discrimination.

Upon hearing about the Church of Cannabis, the religious Right who fervently supported Indiana’s bill, are now singing a different tune. Bill O’Reilly, host of the O’Reilly Factor on Fox, discussed the bill on April 9 during his “Talking Points” segment. O’Reilly praised the Indiana bill for “providing people of faith with an avenue of legal challenge.” In a later show, O’Reilly labelled the first Church of Cannabis a “con,”  and pointed to the conflict between the church doctrine and the state’s marijuana laws. But, this is exactly what the Indiana law was intended to do: allow religious objections to supersede laws that a believer claims is in conflict with his or her faith. When discussing the implications of RFRA for the Church of Cannabis, O’reilly stated, “it’s really a different situation.” Is it a different situation because the religion in question is not Christianity? If there is a strict investigation to determine if the Church of Cannabis is a genuine religious group, should the same apply to all religious objections?

While the First Church of Cannabis has to legally prove that it is a church before the protections of Indiana’s bill are applicable, should a Christian believer have to prove their faith and the legitimacy of their place of worship before being allowed to pose a religious objection under RFRA? In her statement on the case of Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg stated that she believed in “keeping the courts ‘out of the business of evaluating’ . . . the sincerity with which an asserted religious belief is held.” And while courts have historically analyzed the sincerity of religious beliefs, it has only been on a basic factual level.

The development of this new church in Indiana has brought to light two issues with Indiana’s RFRA. The first is that, when applied in a context different from what supporters originally imagined, the support for its effects begins to wane. A law about religious freedom that is only meant to affect certain religions violates its own principles of protecting religious liberty; however, this is the exact context under which the bill was passed. Secondly, the validity of concern over religious freedom is subject to question. Given the rulings of the Supreme Court in Employment Division v. Smith, Church of Lukumi Babalau Aye vs. City of Hialeah, Burwell v. Hobby Lobby, and most recently in EEOC v. Abercrombie and Fitch, it appears that religious liberty is alive and thriving. In this situation it is almost certainly the rights of LGBT citizens that are under the greatest threat. Moreover, despite what some have claimed about the issue, the Supreme Court does not allow religious rights to trump civil rights. In the 1968 case of Newman v. Piggie Park Enterprises, and in the 1983 case of Bob Jones University v. United States, the Court ruled that a religious defense could not be used to prohibit black people from an amusement park, or prevent interracial dating at a university. In both of these cases, as well as others, the Court ruled that a “compelling government interest” can supersede religious liberty and civil rights have consistently been one such interest.

Maurin Mwombela

Maurin Mwombela is a member of the University of Pennsylvania class of 2017 and was a Law Street Media Fellow for the Summer 2015. He now blogs for Law Street, focusing on politics. Contact Maurin at staff@LawStreetMedia.com.

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