The fox news anchor is only slightly more informed and rational than his peers. Contributors to Fox (left and right) have badly mangled this issue (as has most everyone else) and made assumptions, claims, and sometimes fell all over themselves to demonstrate their 'inclusiveness' and 'love of diversity'. And I suppose this is understandable, given the level of idiocy and hysteria that has exploded.
Unfortunately, FOX has handled this issue as poorly as just about every other major news outlet. I've been astounded at the degree of pervasive ignorance and hysterical nonsense that has bloomed among the news reporting class. On one hand there has been the insightful legal analysis provided by law specialists and experts of stature, and on the other hand there has been idiot bloviation and fear mongering by just about everyone else.
Baier is correct but is incomplete and misleading, it is "written a little differently" than some, and not differently than others. NO RFRA is a duplicate of another, and all have their nuances. BUT those differences, when it comes to issues of gay discrimination, are nearly inconsequential. They are, in contrast, a tad more important when it comes to other issues, such as a Hobby Lobby like case at state level.
Jonathan Adler, an active attorney on behalf of the Constitutional right to gay marriage, provides a balanced and rational review of Indiana's law. He finds that:
- Contrary to Tim Cook's hyperbolic and ignorant statements, the claims he (and many others) have made against the new Indiana law are not accurate. Like other RFRAs, this law just requires that state laws meet the test of "a compelling state interest" in the least burdensome way. THAT IS the core of ALL RFRA law. See:
Law professor: Why Indiana needs 'religious freedom' legislation. For background on how these laws work:
Some Background on Religious Exemption Law - The Volokh Conspiracy
- Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest. Of course it’s possible that a court in the future would reach a different conclusion, but there’s no reason to think such a result is likely, and there is nothing about the Indiana law that makes it a particular threat in this regard (not any more or less than in the 19 other states or through the the federal government).
- The Indiana RFRA is not identical to every other RFRA, but the textual differences are not particularly material to laws on on-discrimination. See this handy comparison:
Comparing the Federal RFRA and the Indiana RFRA | Josh Blackman's Blog
- Some RFRA supporters do hope that such laws will allow individuals or companies to discriminate against homosexuals. But that is not what the text of the Indiana RFRA actually does. That’s important because courts don't apply hopes of a subset of supporters, they apply the text of the law as written. And this debate is somewhat moot in Indiana because it doesn’t have a state law barring sexual orientation discrimination on the books.
- Although it has yet to happen, could there be a scenario where a state level RFR might result in an individual business owner denying service to a same-sex couple? Perhaps. The most likely scenario would be something like a religious wedding planner refusing to help plan a wedding that violates his or her religious beliefs. But even if so, it nothing like that of the fears of Cook.
The differences are not especially material to the concerns of the gay lobby, but I will summarize them in a followup post.