Fact-checking the March 29 news shows
At least five times Sunday, ABC This Week host George Stephanopoulos asked Indiana Gov. Mike Pence a variant on a simple question about Indiana’s Religious Freedom Restoration Act: "If a florist in Indiana refuses to serve a gay couple at their wedding, is that legal now in Indiana?"
And at least five times, Pence would not answer.
Instead, the first-term Republican governor defended Indiana’s new and controversial law as providing a legal framework if government impinges on someone’s freedom of religion. He also noted that the very same law has been supported by Democrats in other places, including President Barack Obama.
Sexual orientation "doesn’t have anything to do with" the law, Pence said.
"Then state-sen Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state senate of Illinois," Pence said. "The very same language."
Those claims rate Half True.
As an Illinois state senator, Obama did vote for a version of the Religious Freedom Restoration Act. It passed the Illinois Senate 56-0 and became law on July 1, 1998.
However, the language isn’t the "very same," and the claim is not as simple as lining up one vote next to the other and declaring them equal, experts told us.
The Religious Freedom Restoration Act was originally passed by Congress and signed by President Bill Clinton in 1993 with overwhelming bipartisan support. The intent of the bill was to protect religious practices from government interference, such as whether a Muslim prison guard could wear a beard, or if a Jehovah’s Witness needed special coverage for medical procedures because he or she is against blood transfusions, or Native American religious practices.
States started passing their own laws when the U.S. Supreme Court decided in 1997 that the federal Religious Freedom Restoration Act did not apply to the states. Since then, 19 states have passed their own laws. Many, like Illinois, did so in the initial wave.
Fast-forward to the current climate. The U.S. Supreme Court is expected to weigh in on the constitutionality of same-sex marriage bans. Meanwhile, same-sex marriage bans in states like Indiana have been struck down by lower courts, dramatically changing the concept of legal marriage at breakneck speed.
Conservatives in Indiana and elsewhere see the Religious Freedom Restoration Act as a vehicle for fighting back against the legalization of same-sex marriage.
In 2015, lawmakers in 16 states have introduced legislation that proposes or changes laws protecting religious liberty.
When Pence signed SB 101 in a private ceremony, three people who work for groups that supported the same-sex marriage ban and want to limit civil rights for gays and lesbians were in attendance. One of the lobbyists, Eric Miller of Advance America, heralded the state’s law as protecting Christian bakers, florists and photographers from penalty "for refusing to participate in a homosexual marriage, among other examples." This is a direct reference to high-profile cases of Christian wedding vendors refusing to provide services for gay couples in other states.
In one sense, there isn’t all that much difference between the bill that got Obama’s vote in Illinois 17 years ago and the bill that Pence signed into law last week. But how people want the law applied, on top of other legislative changes, has changed the landscape dramatically, said Steve Sanders, Indiana University Maurer School of Law professor of family and constitutional law.
"What has completely changed are the politics around the issue, the symbolism of what voting for one of these laws means," Sanders said.
In other words, it’s how some conservatives want Indiana’s law to work that fosters fear among civil rights advocates for how it might.
Indiana and Illinois are neighbors in geography but strangers in their approach to gay rights. This difference adds another layer of context to consider with Pence’s claim.
In 2004, Illinois lawmakers passed anti-discrimination laws based on sexual orientation for housing, employment, public accommodation, credit and other measures. Nine years later, the state passed a same-sex marriage law.
These protections did not exist in the state when Obama cast his vote, but same-sex marriage was not part of the discussion as it is now, as it was not yet legalized, said Robin Fretwell Wilson, professor and director of the family law and policy program at the University of Illinois College of Law.
Pressed by Stephanopoulos, Pence said he would not seek protections based on sexual orientation in Indiana and would not say whether Hoosiers could refuse services to gays or lesbians.
"To say, ‘We did what Illinois did,’ without acknowledging the fact that Illinois gave protections, really misses the real debate," said Wilson, who supports the Indiana law because it offers "more transparent and more secure" protections of religious liberty.
Also, it’s incorrect to describe the Indiana and Illinois laws as the "very same."
The wording of each state’s law is similar in that neither mentions sexual orientation or discrimination. But the Human Rights Campaign, which opposes Indiana’s law, says the law is fundamentally different than the federal version and Illinois’ over its definition of "person."
Under Indiana’s post-Hobby Lobby law, a "person" is extended to mean "a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association," or another entity driven by religious belief that can sue and be sued.
To the Human Rights Campaign, this nullifies Pence’s claim that his law is nothing new from the Illinois law.
"That means a corporation in Indiana has a cause of action to sue the government claiming religious personhood for the purposes of this law," said HRC spokesman Adam Talbot.
The American Civil Liberties Union, meanwhile, is concerned about another difference in the wording of the two laws. Indiana’s law includes language that allows people to claim a religious freedom exemption "regardless of whether the state or any other governmental entity is a party to the proceeding."
That language is absent from the Illinois law.
"The Illinois law was written and designed to allow someone to change the government’s burdens on people’s religious beliefs," said Eunice Rho, American Civil Liberties Union advocacy and policy counsel. "The Indiana law specifically says you can use the law in a lawsuit even if the government isn’t a party."
Ultimately, judges will have to interpret the intent of the Indiana language. But there are clear differences between the laws in Indiana and Illinois.
Elsewhere on Sunday, 2016 presidential hopeful Sen. Ted Cruz, R-Texas, sat down for an interview with CNN’s Dana Bash.
Bash noted how Cruz’s biography is similar to Obama’s back in 2007. "A Harvard Law graduate, 40 something years old, two young daughters, in the Senate for only two years who thinks he can be president," she said.
Later, she also described Cruz’s lack of legislative accomplishments, claiming "that there's just one piece of legislation that is now law with your name on it."
That rates Mostly True.
We looked through Cruz’ legislative history on Congressional Quarterly’s database and found that since he became a senator in January 2013, he has been the main sponsor on 44 bills and a cosponsor on 187.
Of those on which he was the primary sponsor, only one passed, as Bash said.
The bill passed unanimously in April 2014 and was intended to stop Iran’s proposed U.N. envoy from entering the United States. Iranian Ambassador Hamid Aboutalebi was involved in holding more than 50 Americans hostage in the U.S. Embassy in Iran in the 1970s.
Cruz’s name is on two more laws as a cosponsor. He was one of 80 senators to cosponsor a July 2014 bill to enhance cooperative programs between the United States and Israel. He also joined a bipartisan group of 22 senators to cosponsor an August 2014 bill establishing a special envoy to promote religious freedom in parts of Asia.
That Cruz doesn’t have a long list of bills that became law shouldn’t be a surprise.
In his first two years in the Senate, Cruz was a member of the minority party, which put him and his fellow Republicans at a disadvantage. It’s expected that the majority leader will schedule bills for his own party more frequently than for the minority, said Joshua Huder, senior fellow at Georgetown University’s Government Affairs Institute. And within their own party, more junior members’ priorities are at the back of the line.
"First-term senators have a lot of headwinds, particularly when in the minority," Huder said. "Nothing about Cruz's position really sets him up for legislative success."