The absurdity of Malloy's travel ban

Peter Sprigg is Senior Fellow for Family Policy Studies at Family Research Council. This article appeared in Waterbury Republican-American on April 5, 2015.

Indiana recently adopted a Religious Freedom Restoration Act (RFRA), defining a legal standard for cases in which government action affects someone's First Amendment right to religious freedom. Critics, though, deceitfully attacked it as a "license to discriminate" against homosexuals, leading legislators to gut their own law. On March 30, Connecticut Gov. Dannel P. Malloy announced he would ban state-funded travel to Indiana because of RFRA.

However, Connecticut — like the federal government (since 1993) and 19 other states — has its own RFRA. Will Connecticut's governor ban Connecticut employees from traveling to Connecticut?

Connecticut's RFRA actually is broader than Indiana's. The Indiana law can be invoked only if "a governmental entity ... substantially burden(s) a person's exercise of religion." The Connecticut law says "The state ... shall not burden a person's exercise of religion." By not requiring this burden to be "substantial," Connecticut makes it easier to invoke the law's protection against government action.

When I read the governor's executive order, I realized he tried to give himself an out against the charge that his policy would require Connecticut to boycott itself. Connecticut includes sexual orientation and gender identity as protected categories in its non-discrimination law, while Indiana does not. So the travel ban applies only to states that "have enacted legislation to protect religious freedom, but do not prohibit discrimination for classes of citizens."

However, if the existence of a non-discrimination law that includes "sexual orientation" and "gender identity" as protected classes is key, why not boycott all the states that do not include those categories? What does the RFRA have to do with it?

Twenty-nine states have not made sexual orientation a protected category in public-accommodations law, and 33 states have not made gender identity a protected category, so boycotting all 33 of them might be too restrictive to be practical. Perhaps targeting the smaller number of RFRA states among them is easier.

Targeting the RFRA states that lack such protections creates a conundrum, though. RFRA laws never have been successfully invoked to prevent punishment of otherwise illegal discrimination. However, even the hypothetical, potential invoking of a RFRA law for the purpose of "discriminating" against homosexuals could take place only in a state that has laws against "discrimination" based on "sexual orientation."

In other words, the fanciful theory that passing a RFRA could create a "license to discriminate" that didn't exist before can only apply in a state like Connecticut. In a state like Indiana, which does not have a statewide "SOGI" ("sexual-orientation" and "gender-identity") law, there is no basis for the type of state government action against "discrimination" in response to which RFRA might, theoretically, be invoked.

So here is the bottom line: Malloy's executive order forbids state-funded travel to states if they have a RFRA that makes no difference regarding "discrimination" against homosexuals; but it allows state-funded travel to states where a RFRA could (theoretically) be invoked as a defense against a discrimination claim.

I don't know whether Indiana's exemption of discrimination laws from RFRA protections will lead Malloy to lift his travel ban. Doing so might spare him further embarrassment; his knee-jerk reaction that led to an absurd result may have exposed him as the most confused public servant in America.