Abstract
The paper intends to debate on several me-

dia representations of some current social and
cultural identities in the USA starting from the
controversy that the Indiana Religious Freedom
Restoration Act has recently generated. It is
to establish the grounding of public opinion re-
garding the way in which American legislation
understands to solve competing constitutional
rights while attracting several important actors in
the network of disputes over values like equality,
freedom, pluralism, justice, democracy. It also
comments on individual and community identity
construction seen as an ongoing process of ne-
gotiation and mobilization of dichotomist beliefs
and practices.

Keywords: law, justice, identity politics, cul-
tural pluralism, equality, freedom, media repre-
sentations, the Indiana Religious Freedom Res-
toration Act.

EQUALITY OR
RELIGIOUS FREEDOM?
THE INDIANA RFRA. SOME
MEDIA REPRESENTATIONS

Ramona HOSU

Ramona HOSU
Associate Professor, Faculty of Sciences and Letters,
Petru Maior University, Târgu-Mureş, Romania
Tel.: 0040-265-262.275
E-mail: ramonahosu@yahoo.com

Transylvanian Review
of Administrative Sciences,
No. 45 E/2015, pp. 76-96

1. Introduction

We are at the end and the beginning of a challenging process of delineation of
concepts like human rights, freedom, center, marginal, diversity, unity, tolerance,
alterity and so on, along with the social and cultural phenomena that they circumscribe.
This because, after some considerable years of manifestation of the modernist tenets
of freedom, equality, progress and the supremacy of reason in the social and cultural
foreground of the Western world, followed by their postmodernist reconsiderations
by means of deconstruction, relativization, uncertainty and ambiguity, the ‘world’
seems not to have come to engage the whole facets of the problems. Or, if one is to
believe in the negativistic defi nitions of postmodernism, according to which we are
now at the end of ‘the grand narratives’/ ‘metanarratives’ of truth, reason, science,
progress (as Lyotard calls them), there is nothing to delineate in these concepts because
they are just some ideals with no correspondent in the human condition. Hence, with
Deconstructivism and Poststructuralism, such values are arbitrary because of the
multitude of signifi ers that identify infi nite meanings in them; human experience is
diverse, states Lyotard, and it is precisely this diversity that reformulates and re-legi-
timizes the variations of the above mentioned principles. This is why they are said
to be fabricated, to have no equivalent in ‘reality’, and what is to ‘blame’ is today’s
understanding of representation. Here is what Baudrillard states on the matt er: ‘[…]
the whole system becomes imponderable, it is no longer anything but a gigantic
simulacrum […] Representation stems from the principle of the equivalence of the
sign and of the real (even if this equivalence is utopian, it is a fundamental axiom).
Simulation, on the contrary, stems from the utopia of the principle of equivalence,
from the radical negation of the sign as value, from the sign as the reversion and
death sentence of every reference. Whereas representation tries to absorb simulation
by interpreting it as false representation, simulation envelops the entire edifi ce of
representation, turning it into simulacrum’ (Baudrillard, 2008b, p. 8).

Consequently, affi rms the French sociologist in Simulacra and Simulation (2008a,
pp. 41-42), ‘[f]or me there is no truth of America […] America is neither a dream
nor reality; it is hyperreality. It is so because it is a utopia that has lived as fulfi lled
from the very beginning. Here everything is real, pragmatic and everything makes
you dream’. How should then one read democracy today, or, to be more specifi c,
Tocqueville’s Democracy in America?

2. Diff erence, individual/ community, identity politics, cultural pluralism

Humans, as social and cultural constructs, are devoid of individual selves and
values, they are the products of contextualization, assumes the anti-humanist, anti-
Enlightenment Postmodern theory. Furthermore, today, ‘one’s identity, value, and
civil rights are accidents of cultural origin, not some property intrinsic to human
nature’ (Leff el, 2015). The center collapsed and margins are diff used; ‘old’ identities
vanish and new ones emerge; alterity, diff erence, multiculturalism, pluralism become

topical; nations and nationhood are redesigned… All in all, identity has become
‘the touchstone of the times’, in Richard Jenkins’ consideration of the issue (1996, p.
8). ‘A new politics of identity’ results from rapid change, which induces a sense of
ontological insecurity (in Anthony Giddens’ understanding of the term) (Jenkins,
1996, p. 7).

Identity is paradoxical, for ‘Je est un autre’, with Rimbaud, i.e. identity is dialectical,
an ongoing process of preservation and change, of alternations of sameness and
uniformity with diff erence and uniqueness. In other words, I is/becomes the Other
since identity construction is possible only in dialogue with the Other. As P. Blanchet
and M. Francard explain the term, the identity of an individual equals the plurality
of belongings or rather of ‘feelings of kinship’ that imply recognition in between I
and the Other (2005, pp. 330-331); self-image or self-consciousness is molded in the
dialogue with alterity, requiring and negotiating the recognition of (the same) values
and worldview; this is the fundament of individual and social identity construction
and it is from here that convergence or divergence results.

Postmodernity registers an outburst of (re)negotiations of multiple identities
(individual, group and even national identities) due to accelerated intercultural
communication. Today, ‘[w]e still lack a true culture of diversity’, affi rms Guy
Jucquois and he explains: ‘Thus, the building of a multiethnic and multiracial society
becomes an urgent goal everywhere in the world. The major diffi culty of such a
process resides in the necessary change of mentality that it entails […] there is no
democracy without pluralism, which is the political expression of diversity. And yet,
there is no mentioning of any of the solutions that must be implemented in order to
facilitate the political participation of all the interested parties’ (Jucquois, 2005, p. 220)
(emphasis added). Moreover, the question is if there is a limit in recognizing cultural
diff erences in a multi- or pluri-cultural democratic society and if individualism has a
say in this matt er. The problematics is three-fold: democracy, multi-/ pluri-culturalism
and individualism – translated in democracy, equality, freedom.

Democracy is a form of government in which ‘people rule’, or a political
community in which there is some form of political equality among the people (Held,
2006, p. 1). To complicate matt ers: what precisely is the meaning of people and of
rule? For Alexis de Tocqueville, the answer is simple and pointed: ‘At the present day
the principle of the sovereignty of the people has acquired in the United States all the
practical development that the imagination can conceive’; ‘The nation participates in
the making of its laws by the choice of its legislators, and in the execution of them
by the choice of the agents of the executive government; it may almost be said to
govern itself […] The people […] are the cause and the aim of all things; everything
comes from them, and everything is absorbed in them’; ‘It is possible to imagine an
extremepoint at which freedom and equality would meet and blend. Let us suppose
that all the people take part in the government, and that each one of them has an
equal right to take part in it. As no one is diff erent from his fellows, none can exercise
a tyrannical power; men will be perfectly free because that are all entirely equal;

and they will all be perfectly equal because that are entirely free. To this ideal state
democratic nations tend’ (Tocqueville, 1998, pp. 32-33; p. 201). In Tocqueville’s belief,
democratic nations ‘show a more ardent and enduring love of equality than of liberty’.

To entangle issues even more, there have been numerous debates on the dichotomy
liberty – equality. Do the two exclude each other or are they interdependent, as
Tocqueville assumed? The manifestation of individual freedom (in the liberal
understanding of individual autonomy) often comes against egalitarianism, which
entails the sharing of common tenets and which, correspondingly, prioritizes group
values over individual ones. The dilemma here comes from the current defi nition
of social justice understood as the virtual reconciliation of the sense and need of
belonging to a community, the common good (and this encompasses equal values,
equal rights and equal status), with self-determination and individual liberty,
according to Alain Policar (2005, p. 248). ‘The community or the individual?’, that is
the question! There is no such question for Joseph Raz who understands that ‘personal
autonomy depends on the persistence of collective goods’, which is why ‘the notion
of the inherent general confl ict between individual freedom and the needs of others
are illusory’ (Raz, 1986, p. 250). Raz argues that an individual’s freedom (personal
autonomy) might be in confl ict with the interests of the others but it also ‘depends
on those interests and can be obtained through collective goods which do not benefi t
anyone unless they benefi t everyone’ (p. 250).

Multiculturalism and cultural pluralism, as phenomena, have redesigned the
debates on the above-mentioned dichotomy. A. Policar distinguishes two directions
in the institutionalization of multiculturalism in the USA; on the one hand, there
is the affi rmative action policy, focusing on social equality; within it, positive
discrimination is meant to restate equality; this means that a moral issue is at the
origin of public action; on the other hand, there is what Charles Taylor calls the
politics of recognition, i.e. the recognition of diff erence as the basis of human dignity;
such identity politics implies the political acceptance of rights and privileges granted
by the specifi city of the group; this results in social visibility and access to the public
space (Policar, 2005, pp. 450-451). In Taylor’s terms, multiculturalism is built on the
principles of the politics of equal respect, respect for diff erence and uniqueness:
‘Just as all must have equal civil rights, and equal voting rights, regardless of race or
culture, so all should enjoy the presumption that their culture has value’ (Taylor, 1994,
p. 68). As mentioned before, recognition implies multiple negotiations of affi nities
and oppositions among identities (individual and/or group ones) in the context of
intercultural relations and these construct a ‘new reality’ carrying the imprints of
the ‘new identity’ (Blanchet and Francard, 2005, p. 335). In addition, where in the
process of negotiation, forces/ groups are balanced and ‘exercise a limited measure of
democratic control through their access to the major elites’, in which no group ‘wields
dominant power’ (Swingewood, 1994, p. 114), we speak about cultural pluralism. This
comprises, in Monique Deveaux’s defi nition (Cultural Pluralism and Dilemmas of Justice),
six components: (1) ‘the importance and value to individuals of cultural identity and

of membership in a respected cultural community’; (2) ‘liberal democratic states […]
have reasons to value, and to protect, cultural diversity within their boundaries’;
(3) ‘respect and justice for cultural minorities includes their right to challenge and
to help shape the public and political culture of the society in which they live’;
(4) ‘liberal democratic states cannot (justly) defi ne which diff erences they have
reason to recognize politically without fi rst deliberating with those involved’; (5) ‘a
satisfactory defense of the importance of certain group cultural rights and limited
forms of community autonomy and of the need for allocation of state resources to
support such special arrangements’; (6) ‘an adequate account of where to draw the
“limits of tolerance” and how we are to decide which cultural practices democratic
polities cannot protect or accept’ (Deveaux, 2000, p. 35). Such a defi nition bonds
cultural pluralism, identity politics and the law, which is the subject that Austin Sarat
and Thomas R. Kearns focus on in their endeavor to prove that today’s democracies
need ‘a form of citizenship that recognizes diff erence but nonetheless claims equality’
(2004, p. 3). Cultural pluralism and identity politics are ‘integral parts of something
called American culture’, state Sarat and Kearns, ‘a hybrid nation’ in which ‘individual
and cultural diff erence, as well as the confl icts and disputes they generate, has been a
part of the cultural life of Americans since the nation’s founding’ (p. 8); the question to
ask is if the Law can foster a society in which ‘cultural pluralism and identity politics
could fl ourish’, and Sarat and Kearns say this is not possible because‘ [l]aw, in theory,
knows no culture and recognizes no identity’, since it is, presumably, neutral (p. 11,
p. 13). If, as Tzvetan Todorov assumes, ‘diff erence is corrupted into inequality, equality
into identity’ (1999, p. 146), how can the Law contribute to a bett er enforcement of
democratic norms meant to enable social justice and to protect freedom and equality
in a pluralist society?

3. Social justice, equality, religious freedom, the law

It is especially today that the problem of social justice and social rights encompasses
the problem of individualism and diff erence in terms of identity construction and
recognition. One of the most famous considerations on social justice comes from
Friedrich Hayek. For him, social justice (the principle of equality included) is a mirage
and it does nothing else but destroys individual freedom. Hayek’s equation (one of
them) is simple: ‘From the fact that people are very diff erent it follows that, if we treat
them equally, the result must be inequality in their actual position, and that the only
way to place them in an equal position would be to treat them diff erently. Equality
before the law and material equality are therefore not only diff erent but are in confl ict
with each other; and we can achieve either one or the other, but not both at the same
time’ (Hayek, 2006, pp. 76-77). John Rawls, on the contrary, demonstrates that justice
comprises both liberty and equality, the latt er implying equality of opportunity and
the principle diff erence; there are two tenets of justice in his view: (1) ’[e]ach person
has the same indefensible claim to a fully adequate scheme of equal basic liberties,
which scheme is compatible with the same scheme of liberties for all’; and (2) ‘[s]ocial

and economic inequalities are to satisfy two conditions: fi rst, they are to be att ached
to offi ces and positions open to all under conditions of fair equality of opportunity;
and second, they are to be to the greatest benefi t of the least-advantaged members of
society’ (Rawls, 2001, pp. 42-43). In defi ning social justice, David Miller particularizes
liberty and equality, in his design of a pluralist theory; thus, social justice should not
only guide politicians but it should also constrain everyday behavior, which means
that social justice and individual liberty are ‘at odds with each other’ (Miller, 1999,
p. 13). There are two conceptions of social justice that aff ect one’s understanding of
liberty, says Miller: (1) the basic rights of citizens include rights to liberties (such as the
freedom of speech, for instance); (2) lack of resources could constrain freedom (only
law counts as constraint or lack of material means also counts here). Consequently,
states Miller, ‘an obstacle to someone’s action counts as a constraint on their freedom
if and only if another agent (or set of agents) is responsible for the existence of that
obstacle’, and here responsible means morally responsible; eventually, concludes
Miller, what counts as liberty depends on the very defi nition of justice (p. 14). As
previously mentioned, Joseph Raz’s understanding of freedom in relation to justice
and rights clarifi es the dichotomy. The autonomous individual and his/ her freedom
depend on his/ her integration into a community where collective goods are shared;
rights should not articulate fundamental moral or political principles or protect
individualistic personal interests but they should rather ‘maintain and protect the
fundamental moral and political culture of a community through specifi c institutional
arrangements or political conventions’ (Raz, 1988, p. 245). Religious freedom is
among those rights that call for a discrimination between individual conscience and
communal peace, says Raz (p. 251); in his point of view, since religion is a social
institution that embraces a community, ‘the right to free religious worship’ is not
only ‘a right of communities to pursue their style of life and aspects of it’ but also ‘a
right of individuals to belong to respected communities’; in other words, explains
Joseph Raz, even if religious freedom was conceived of in ‘terms of the interests of
individuals’, it actually depended on the existence of a public good, namely: ‘the
existence of religious communities within which people pursued the freedom that the
right guaranteed them’ (p. 251) (emphasis added).

The dichotomist perspective is, nevertheless, still active when it comes to cultural
pluralism (in terms of religion, race, ethnicity, gender etc.) and identity politics, and
the way in which institutions facilitate the recognition of distinctiveness (thus, of
autonomy), and at the same time ensure equality. Among them, law (legal policy
and doctrine) is expected to respond to such challenges. In the opinion of A. Sarat
and T. Kearns, there are two aspects to consider here: (1) the way in which law
understands the antidiscrimination principle, and (2) how particular groups could
seek exemptions from the reach of state regulations in order to preserve an element
of their culture, thus of their identity (2004, p. 11). Sarat and Kearns even formulate
an ultimate recommendation: ‘[t]he demands of cultural preservation or cultural
expression [religious freedom included] have to give way to the uniform obligations

of citizens before the law’ (p. 11). In a more pessimistic tone, Winnifred Fallers Sullivan
demonstrates that religious freedom is impossible. She explains in the Introduction
to her book (The Impossibility of Religious Freedom, 2005) that there are ‘many laws,
constitutions, and international treaties today’ that ‘grant legally enforceable rights
to those whose religious freedom is infringed’ but there have been many ‘stories of
confl ict between the demands of religion and the demands of law’ (p.1). Sullivan goes
on to say that ‘[n]owhere, as Americans understand it, is religion so strong and so free’,
not even in Europe. Nevertheless, despite the fact that ‘a commitment to religious
freedom is a taken-for-granted part of modern political identity in much of the world’,
and that religious freedom is one of the fundamental rights of a free democratic
society, it seems religious freedom is impossible to realize even in the United States.
The impossibility that she speaks about derives precisely from particular matt ers,
local tales of dispute that are ‘arguably of wider signifi cance’ (Sullivan, 2005, pp. 1-2).
These confl icts, in the line of the present paper, are reformulations of the dilemma
freedom vs. equality, individual vs. community, minority vs. majority. Is this the
situation with the Indiana Religious Freedom Restoration Act? RFRA is actually brought
forward by Sullivan as one of the arguments in her approach. ‘Most laws aff ecting
religion are’, she says, ‘state laws governed by state constitutions, state constitutions
that have also guaranteed freedom of religion’ (p. 25).

Religious freedom is a right constitutionally provided by Amendment I: ‘Freedom
of opinion’ (1791). Religion, Speech, Press, Assembly, Petition. Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise thereof’
(apud Bragdon and McCutchen, 1964, p. 132). Amendment XIV grants the equal
protection of the laws, therefore religious civil rights as well: ‘All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due
process of law, nor deny to any person within its jurisdiction the equal protection of
the laws’ (apud Bragdon and McCutchen, 1964, p. 138). In addition, the Declaration
of Independence sees men as ‘created equal’, having ‘certain unalienable Rights’ (life,
liberty, and the pursuit of happiness) and: ‘to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the governed’
(apud Bragdon and McCutchen, 1964, p. 734). Is it possible or necessary to separate
religion and the state, consequently? Moreover, should government involvement in
religious matt ers be limited? Alexis de Tocqueville identifi es a paradox in this: on
the one hand, religion and politics should not interrelate (‘[i]n proportion as a nation
assumes a democratic condition of society and as communities display democratic
propensities, it becomes more and more dangerous to connect religion with political
institutions; for the time is coming when authority will be bandied from hand to
hand, when political theories will succeed one another, and when men, laws, and
constitutions will disappear or be modifi ed from day to day, and this not for a season

only, but unceasingly’); on the other hand, religious practices regulate community
customs and, accordingly, it administers the state (‘[i]n the United States religion
exercises but litt le infl uence upon the laws and upon the details of public opinion; but
it directs the customs of the community, and, by regulating domestic life, it regulates
the state’) (Tocqueville, 2015).

4. Research questions and method

The present paper tries to answer two questions: (1) since law is meant to regulate
contemporary social realities (in matt ers of identity politics and cultural pluralism),
how does American legislation encompass representations of individual/ community
identity?; (2) how does the media refl ect and construct such social representations?

By means of a qualitative content analysis, in an descriptive and exploratory
approach, the intention is to delineate the grounding of public opinion regarding
the recent Indiana law on the restoration of religious freedom starting from articles
writt en in response to the network of issues that the matt er involved, all published
in The New York Times. Moreover, it is to identify some representations of equality,
freedom, pluralism, diff erence, democracy as resulting from the complex perspectives
and meanings that the media (The New York Times’ articles) generated on RFRA,
which could have followed or directed the course of interpretations.

The search engine of The New York Times website generated 137 articles on the topic
‘Indiana religious freedom’ between May 2014 and April 2015. For the present paper,
20 articles were selected on the criteria of topicality and relevance to the matt er. To
see the gradual development of the formation of representations, the articles have
been sorted chronologically. The fi rst set of articles consists in news informing on the
events preceding the enactment of RFRA. The content analysis in this case is focused
on the contextualization of the phenomena, which eventually generates some frames.
The second set of articles consists in columns that opinionate and argue on supporting
or opposing the Indiana RFRA, providing a subjective perspective on the dichotomy,
more or less under the infl uence of the media frames.

5. The Indiana Religious Freedom Restoration Act

The 1993 Religious Freedom Restoration Act was meant to regulate government
involvement in religious issues, namely to ensure that religious freedom is protected.
Gregory C. Sisk explains in Litigation with the Federal Government (2006) that the
law was formulated in response to a decision of the Supreme Court that ‘narrowly
interpreted religious freedom rights under the Constitution’, namely under
Amendment I and XIV; this is why it ‘has occasioned constitutional controversy
from its inception’ (p. 213). Religion and the Law: An Encyclopedia of Personal Belief
and Public Policy (2007) details the origin and implications of the regulation. It was
meant to overturn the Employment Division v. Smith case; two Native Americans
used peyote in a religious ceremony and they were fi red after testing positive for
mescaline; further on, they were refused unemployment benefi ts on this ground;

peyote had been banned in Oregon. The case held that a state ‘could outlaw peyote
use without violating the First Amendment’s freedom of religion’ (Merriman, 2007,
p. 431); in other words, religious practices are protected through the Free Exercise
Clause of Amendment I on condition that they do not contradict a generally
applicable law; this resulted in outrage and some consistent criticism of the idea that
states could pass laws that limited religious freedom. Consequently, with RFRA, the
Congress wanted to reverse Smith and to restore the possibility of legal exemptions
for religious matt ers; the core dispute revolved around the idea that the state had to
prove a ‘compelling government interest’ if a law substantially burdened the religion.
RFRA declares: ‘Government shall not substantially burden a person’s free exercise
of religion even if the burden results from a rule of general applicability, except as
provided in subsection (b). (b) Exception: Government may substantially burden a
person’s exercise of religion only if it demonstrates that application of the burden
to the person – (1) is in furtherance of a compelling government interest; and (2) is
the least restrictive means of furthering that compelling government interest’ (apud
Merriman, 2007, p. 432). In 1997, in the case Boerne v. Flores, the Supreme Court and
Justice Kennedy held that RFRA was unconstitutional (not because the Smith case
was wrong but because the Congress wanted to guarantee the First Amendment
rights based on section 5 of Amendment XIV which says: ‘The Congress shall have the
power to enforce, by appropriate legislation, the provision of this article’, implicitly,
section 1, i.e. no state shall enforce any law that shall ‘abridge the privileges’ of the
citizens). As Kennedy put it, a law that ‘alters the meaning of the Free Exercise Clause
cannot be said to be enforcing the Clause. Congress does not enforce a constitutional
right by changing what the right is. It has been given the power to “enforce”, not
the power to determine what constitutes a constitutional violation’ (apud Merriman,
2007, p. 432). Nevertheless, since the states could do what the Congress could not,
because they ‘were not inhibited by the limits of Amendment XIV’, explains W.
Sullivan (p. 29), the same RFRA was upheld as constitutional in 2001 and has been
applied in twenty states so far. Another controversial case should be mentioned here,
Burwell v. Hobby Lobby, which overpowered the contraceptive mandate, extending
religious exemptions from federal laws to for-profi t corporations. The recent and still
controversial Indiana RFRA was signed on 26 March 2015 by governor Mike Pence,
12 years after the formulation of the Act.

Is this an anti-gay law? Why is this regulation a reason for holding that religion
is a cover for bigotry? Why should it interfere with big businesses? Why would the
‘conscience of a corporation’ matt er here? Does this law mean that religious liberty
comes against equality, or that religious freedom opposes individual equality? All
these questions arise from the headlines of some articles published in the opinion
sections of The New York Times after the enactment of the Indiana RFRA.

The fi rst set of articles analyzed in the next section consists in some news stories
that explain the background of the controversy for they bring forth several frames
that guided the constructions of representations. The fi rst article to draw att ention on

the topic is titled ‘Republicans Rallying Behind Religious Liberty’, published on 26
September 2014, by the Associated Press; as formulated, religious liberty is one of the
favored themes that republicans are to rely on in the 2016 presidential contest; it
appears they need religious liberty ‘to improve their brand’, says the text; the lead
associates religious liberty with divisive social issues; to be more specifi c, the next
paragraph names abortion and gay marriage and it juxtaposes them with ‘the
persecution of Christians and their values at home and abroad’; this is, as the article
puts it, ‘a message GOP offi cials hope will help unify a divided party and appeal to
new voters’; to give it credibility, the article quotes Texas Senator Ted Cruz (who is
said to have stated ‘[w]e need a president who will speak out for people of faith,
prisoners of conscience’), and also other representatives of the ‘religious
conservatives’; the article does more than informs on a ‘Friday gathering of evangelical
conservatives’ hosted by Family Research Council; it constructs several frames on the
problem of religious freedom, connecting it with election goals, rightist ideology,
religion as prior to social issues, conscience; from the quote ‘without religious
freedom, we lose the ability to even address those other issues’, the text goes on to
explain that ‘the party platform formally opposes same-sex marriage and abortion
rights’ and that for the future elections, as resulting from an internal audit, candidates
should be ‘more “inclusive and welcoming” on social issues’; as a matt er of fact, at a
metadiscursive level, in an apparent game of prioritizing the issues at stake, the
article satirizes the priorities of the republicans: ‘abortion and gay marriage were not
forgott en on Friday, however’, the reader is told; as regards Indiana, the text only
refers to Indiana Rep. Marlin Stutz man who pleaded for a war against abortion. It
would be important to mention that in the background, in 2014, according to ProCon.
org, same-sex marriage was legalized in 26 states (9 of them in October 2014, by Court
decision). As a consequence, the next article, provided by the search engine,
announced, on 7 October 2014, ‘Gay Marriage Decision Reignates GOP Debate’; the
same divisive social issue is presented against religious conservatives, named ‘a vocal
minority’; the text quotes Ted Cruz’s remarks on the Court’s decision on gay marriage:
‘judicial activism at its worst’; moreover, the Law and its representatives (‘elected
offi cials, att orneys and judges’), i.e. ‘a court ruling’, should not have ‘the fi nal word’
in such matt ers, states the senator; his plea is for a constitutional amendment meant
to ‘limit the court’s ability to strike down the remaining state laws blocking gays and
lesbians from marrying’; the article underlines that actually the ‘matt er is over’ in as
much as 30 states, which means that 60% of the Americans live in states ‘where gay
and lesbian people can marry’, and this idea comes against what happened ten years
ago when, ‘[p]resident George W. Bush won reelection in part by supporting ballot
initiatives in several states seeking a constitutional ban on gay marriage’; Indiana is
mentioned in the article through Gov. Mike Pence who is quoted with his beliefs in
‘traditional marriage’ which is not above ‘the rule of law’ because ‘people are free to
disagree with court decisions but we are not free to disobey them’. In framing the
‘religious freedom – social issues’ disunion, another article of The Associated Press,

published on 23 December 2014 (‘Church-Based Institutions Ponder Same-Sex
Benefi ts’), signals the problems of ‘church-based institutions’ that ‘are facing the
thorny question whether they have an obligation – morally or legally – to extend
health care benefi ts to spouses of gay and lesbian employees’ amid the ‘dramatic
expansion of same-sex marriage’; some institutions are described as being pro off ering
benefi ts to such couples either in order to comply with laws or to sympathize with
marginalized or ostracized ‘brothers and sisters’; this even if such action could send
‘a confusing message on church teaching’; despite the acceleration of the same-sex
legalization process by federal court decisions, at the lower level of religious-based
institutions, changes will come ‘at a slow pace’, concludes the article. The discord on
the problem equal rights vs. individual autonomy (through religious freedom) would
decrease in intensity if civil rights bills (non-discrimination ordinances) were
introduced in the House and the Senate, affi rms an article published on 1 January
2015 by The Associated Press (‘Beyond Marriage, Challenges Ahead for Gay Rights
Groups’); 2015 begins with some new challenges generated by the fact that ‘same-sex
marriage edges [are] closer to becoming legal nationwide’; even if the bill passed,
Republicans controlling both chambers would not advance the bill; consequently,
without such a federal law, the reader is explained, the solution resides at the state
and local levels for the passing of nondiscrimination laws; the text further explains
that the sexual discrimination issue seems to deepen with such particular cases as
‘transgender people serving in the military’, transgender restroom use, transgender
teen suicide; the problem of religious freedom is, evidently, linked with the
conservatives, and it refers to ‘“religious freedom” bills designed to give more legal
protections to people who might be accused of discrimination for actions they took in
accordance with religious beliefs’; Indiana, says the article, is drafting a broader bill
that ‘would protect business people who refuse to serve same-sex couples on the
basis of their religious faith’, an affi rmation that comes three months before the
enactment of RFRA; marriage equality for LGBT actually means ‘full equality’, the
text assumes. At the beginning of March 2015, two articles reignite the same issue:
religious freedom bills are designed against gay couples; the article signed by the
Associated Press states that ‘Ga. Senate OK’s Religious Freedom Bill Feared by LGBT
Groups’, which is ‘one of a wave of measures surfacing in at least a dozen states that
critics say could provide legal cover for discrimination against gays and transgender
people’; the reader is mentioned about some institutions that came out against the
law: national gay-right groups, Human Rights Campaign, the American Civil
Liberties Union; this article also associates these religious freedom bills with measures
of the conservatives against a ‘possible U.S. Supreme Court ruling legalizing same-
sex marriage nationwide’, confi rmed by State Sen. Elena Parent (Atlanta Democrat);
in opposition, the reader is given the statement of Senate Majority Leader Bill Cowsert
(Republican) according to which: ‘[t]his is not a vehicle for discrimination’, the issue
just being ‘one of those fascinating areas where you have competing constitutional
rights’; in other words, the religious bill has no connection with the legalization of

same-sex marriage; it is a controversy because of the nature of constitutional rights.
The second article mentioned here (‘States Weigh Legislation to Let Businesses Refuse
to Serve Gay Couples’) works on the same idea, adding that such measures ‘would
make it easier for businesses and individuals to opt out of serving gay couples on
religious grounds’. Later, on 23 March, a news story signed by Reuters announces
that ‘Indiana House Passes Controversial Religious Freedom Bill’; the text begins by
connecting the law with the idea it ‘could protect business owners’ against gay
couples; the news announces that ‘Senate Bill 101, known as “Religious Freedom
Restoration Act”’ ‘was approved by the Republican-controlled House by 63-31’;
Republican Governor Mike Pence is said to have considered that the law ‘is about
respecting and reassuring Hoosiers that their religious freedom are intact’; the article
clearly formulates the pros and cons regarding the event: supporters consider the bill
‘will keep government entities from forcing business owners […] from acting in ways
contrary to strongly held religious beliefs’, which means, as the text formulates it, that
bakeries and fl orists who do not want to provide service to gay couples are protected
by this law, this because gay marriage became legal in Indiana in 2014; the text
concludes, by quoting the national director of Lambda Legal’s Law and Policy Project,
that this bill, paradoxically, actually facilitates religious discrimination. On 24 March,
an Associated Press article informs on the Indiana Senate voting for RFRA (‘Indiana
Lawmakers Send Religious Objection Bill to Governor’); it is this article that fi rst
mentions not only same-sex marriage issues in relation to religious freedom but also
‘other activities’ that could become ‘objectionable on religious grounds’; the text
builds on both pros and cons the law, focusing on arguments that try to de-prioritize
gay marriage; it speaks about rallies in support of and against the Indiana bill that
‘drew hundreds of people to the Statehouse in recent weeks’, mentioning Christian
and Jewish clergy members on each side; the argument added in support for the bill
is the idea that the law was passed in 1993 and since then 19 other states have enacted
it, long before they began allowing gay marriages, which is why it should not be
connected to same-sex issues; it mentions Senate Majority Leader Brandt Hershman’s
statement that ‘the proposal sets a standard for courts to review government actions
and that groups against it have stirred up fears for nothing’; in opposition to this the
reader is given the affi rmation of Eunice Rho (American Civil Liberties Union)
regarding the fact that religious bills are a response to gay marriage legalization
because ‘the context of the debate is much diff erent than when many of the existing
laws were enacted in the 1990s and the early 2000s’; the article ends with the same
sets of oppositions: pros explain that the law is not meant to discriminate but to
ensure the ‘free exercise of religion’, cons plead for the idea that such state proposals
go beyond the federal law. Some articles focus on some eff ects that the law had on
public issues, such as the fact that a major gaming convention threatened to move its
annual event out of Indiana, or that some leaders of the Christian Church reconsider
their plan to hold their general assembly in Indianapolis if Gov. Pence signs the bill.
Furthermore, an article signed by Reuters on 25 March (‘Indianapolis Mayor Says

Religious Freedom Bill Sends Wrong Signal’) mentions that legal experts believe the
Indiana RFRA ‘sets a standard that will allow people of all faiths to bring religious
freedom claims’ and it mentions the ‘legal intricacies’ involved which is why the law
sends the wrong message. On 26 March, a piece of news announces that as ‘dispute
swirls’, the Indiana Religious Objections Bill is signed by Mike Pence, adding that this
is the fi rst act signed in 2015 on the issue and that it would probably be followed by
other states where such proposals have been introduced; the article quotes Pence who
refuted opposing arguments: ‘[t]here has been a lot of misunderstanding about this
bill’; the ‘bill is not about discrimination, and if I thought it legalized discrimination
in any way I would’ve vetoed it’; this is followed by the opposite idea that the bill is a
reaction of the conservatives against a ‘possible U.S. Supreme Court ruling legalizing
same-sex marriage nationwide’; it mentions the pro and con reactions of institutions
on the ground of the two arguments. What followed in the course of events, after
RFRA was signed, is a set of reactions, opinions of institutions or individuals
representing institutions regarding the impact of the law, all of those mentioned by
the articles being against RFRA: NCAA, other sports entities, the Christian Church,
Gen Con, Salesforce, many tech CEOs. Moreover, ‘Indiana Law Denounced as
Invitation to Discriminate Against Gays’, signed by M. Barbaro and E. Eckholm and
published on 28 March, also informs on protests and rallies from the worlds of arts,
business and college athletics and on ‘threats of boycott from actors’; it adds that
some legal experts say‘ the potential reach of the Indiana law, and many like it, has
been exaggerated by opponents’, quoting law professor Douglas Laycock (from the
University of Virginia): ‘[t]he hysteria over the law is so unjustifi ed’; ‘[i]t’s not about
discriminating against gays in general or across the board’; ‘[i]t’s about not being
involved in a ceremony that you believe is inherently religious’. Three days after the
bill was signed, a new subject arises: most states with similar laws have non-
discriminatory bills, which is not the case of Indiana; when asked about it, M. Pence
mentioned ‘that’s not on my agenda’ and ‘is tolerance a two-way street or not?’
(Reuters in ‘Indiana Governor Defends Religious Freedom Law’). On 30 March, the
Associated Press publishes an article entitled ‘A Look at Widely Criticized Indiana
Law on Religious Freedom’ which summarizes the history of the bill, explains why it
is associated with same-sex marriage and mentions in brief some of the reactions and
impact of the bill.

The next set of articles to analyze here consists in opinion pieces writt en on the
topic. The intention is to go beyond news objectivity into personal, subjective (and yet
public) perspective on the controversy in order to identify further frames, meanings
and understandings of equality, civil rights, individual liberty and religious freedom
in relation to law. The editorial published on 31 March (‘In Indiana, Using Religion as
a Cover for Bigotry’) starts with a label: the religious-freedom law was signed by
Mike Pence ‘driven by bigotry’ mentioning that opponents ‘are spreading
“misinformation”’; the article assumes that the law does not specifi cally permit
businesses to refuse gays and lesbians but this lack of direct reference to gay

discrimination in the content of the law is intentional because ‘drafters were too smart
to make it explicit’ and ‘nobody is fooled as to the law’s underlying purpose’;
moreover, the enactment of the law is seen as a tactic meant to ‘justify and support
anti-gay discrimination’, which is relatively new; new because a decade ago states
could openly ban such marriages but since in recent years federal and state courts
have struck down the interdictions as unconstitutional, this law on religious freedom
is only another ‘strategy’ for the fi ght against same-sex marriage; what is special
about this Indiana law, affi rms the editorial, is that it came along with gay rights and
marriage equality, whereas in the other 19 states where the law was adopted it was
applied to disputes between individuals and the government; the tone is more
sarcastic when the text refers to Mike Pence who is said to have affi rmed that the law
‘“is not about discrimination” but about ‘empowering people”’; irony and accusation
become more evident when the article mentions Pence’s refusal to consider a non-
discrimination law and his statement with regard to the clarity of the bill: the ‘freedom
to exercise one’s religion is not under assault in Indiana or anywhere else in the
country’, for religious people ‘may worship however they wish and say whatever
they like’; all in all, the reader is told that religion is only a weapon, a ‘cover for
discrimination in the public sphere’. David Brooks signs a column titled ‘Religious
Liberty and Equality’; as the intro announces, it is all about ‘a great struggle to balance
civil rights and religious liberty’; in his rhetoric, Brooks uses some of the Aristotelian
pathos when formulating: ‘[w]e are to be judged by how we love, not by whom we
love’; denying civil rights to gays and lesbians is ‘wrong’, affi rms the author, adding
they should be ‘honored’ for marrying and living as they want; the counterargument
is ‘this was a nation founded on religious tolerance’, the ‘ways of the Lord are
mysterious’ and ‘Americans have always believed that people should have the widest
possible latitude to exercise their faith’; bigots are opposed to ‘people worthy of
tolerance, respect and gentle persuasion’ when it comes to heterosexual defi nitions of
marriage; the text of the law is understood by Brooks as a ‘moderate, grounded,
incremental strategy’ that ‘has produced amazing results’; among its benefi ts: ‘[f]
ewer people have to face the horror of bigotry, isolation, marginalization and
prejudice’; as regards the Indiana bill, the matt ers mentioned are ‘no tension between
religious pluralism and equality’ as well as ‘religious liberty as cover for anti-gay
bigotry’, which are the two arguments of the opposing parties; Brooks calls them
unwise ‘deviation’ for it seems the acute problem is the lack of tolerance for both
sides; religious liberty and civil rights should be balanced or else ‘the cause of gay
rights will be associated with coercion, not liberation’; any movement that stands for
tolerance would be against a government that compels people to do what is against
their beliefs, adds Brooks; people should be respected for their religious creeds or else
this ‘would only halt progress’: ‘religious liberty is a value deserving our deepest
respect, even in cases where it leads to disagreements as fundamental as the defi nition
of marriage’; the set of theorems that Brooks off ers is simple and pointed: tolerance is
linked with morality and the ‘politeness of the soul’, which also means ‘creating

accommodations’; ‘basic truths are inalienable’, discrimination ‘is always wrong’,
bigotry is even worse, but what matt ers most is to ‘seek a creative accommodation’ –
this ultimate value being the fundament of a pluralistic society, in which ‘we try to
turn philosophic clashes (about right and wrong) into neighborly problems in which
diff erent people are given space to have diff erent lanes to lead lives’, concludes David
Brooks; the greatest mistake of the two parties involved is taking an ‘absolutist
position’, which is not pragmatic, virtuous or true ‘in a clash of values’, emphasizes
the journalist. This invitation for ‘deep politeness’ rather than compulsion is refuted
by a comment on Brooks’ text which explains that in the civil rights movement the
key was ‘confronting the evil’ not ‘courtesy toward the antagonist’, which is why
anti-discrimination laws would be a necessity. Charles M. Blow opposes religious
freedom to individual equality in an opinion piece published on 1 April (‘Religious
Freedom vs. Individual Equality’); it starts from Mike Pence’s belief that the
controversy over the law is caused by a ‘perception problem’ of the law meant to
protect the ‘heteronormative construct’, which is explicitly denied by Blow: ‘there is
no perception problem’ but rather a ‘detection problem’ because people ‘detected
precisely what the bill was designed to do, and they objected’; the journalist argues
that the law is all about ‘the possibility that religion could be used as a basis of
discrimination against some customers’, which is ‘repulsive and deserving of all
manner of reprobation’; to support his belief, Blow mentions a source that sustains
that RFRA is diff erent in Indiana, compared to the other 20 states, because it applies
to for-profi t business and because the free exercise right could become a ‘defense
against a private lawsuit by another person, rather than simply against actions
brought by government’; in denouncing the bill, Blow uses such terms as ‘state-
sponsored discrimination’ which is ‘blatant and codifi ed’, ‘discordant with current
cultural norms’ and ‘anathema to universal ideals of fairness and human dignity’;
moreover, the journalist also mentions ‘a moral issue driven by consumerism
considerations’, explaining: ‘[b]ig business had more to lose by appearing intolerant
than small business had to gain by hewing to an exclusionary holiness’; further, this
law is connected to good will and good public relations since equal treatment is ‘the
appropriate moral position’; the problem is tolerance, so it seems, because those who
do not confront and are pious, to paraphrase Blow, actually want to hate and to
discriminate; they are bigots; Blow’s rhetorical question is: [w]here are the lines
between religious rights, business rights and human rights?’; what the journalist
penalizes comes through a Harvard Law School quotation which stipulates that the
First Amendment is wrongly interpreted because it shifts from the protection of
individual freedom to business freedom; the conclusion is even more rhetorical: ‘one
person’s opinion’ vs. ‘another’s personal liberty’? In ‘Indiana Loses Its Game’, Gail
Collins emphasizes one interpretation of the discord that came along in media: the
Indiana law was similar to the federal religious freedom act but it extended to
businesses and it was used by conservatives as a pretext for covering their ‘inability
to ban same-sex marriage’. Timothy Egan (‘The Conscience of a Corporation’) is witt y

and harsh in looking down upon businesses that mix consumer goals or moneymaking
with religious convictions due to their ‘deeply held relationship with God’, which he
calls ‘corporate consciences’; in other words, he criticizes the law for giving religious
rights to entities without a soul, which is the hypothesis for a debate on the
understanding of ‘person’ in juridical terms: ‘Apple, Nike, Yelp, Gap, PayPal […]
have rebelled. They are saying: No, don’t give us the power to discriminate. We’d
rather remain soulless purveyors of product to the widest possible customer base’;
the conclusion of the article is irrevocable: even if endowed with conscience and a
soul, ‘a corporation will never truly be a citizen’. This article identifi ed the role that
companies play in the political process. The editorial published on 3 April (‘Big
Business and Anti-Gay Laws’) debates on this issue calling it a ‘bargain’ in which
companies simply react to ‘the change in public opinion about same-sex marriage’;
since corporations have infl uential voices on the political stage, once they ‘are
embarrassed by religious freedom laws’, they should consider when to support
political interests, underlines the Editorial Board of The New York Times. In ‘Bigotry,
the Bible and the Lessons of Indiana’, Frank Bruni formulates the polemic around the
incompatibility of ‘homosexuality and devout Christianity’; what sin is, opinionates
Bruni, is a matt er of decision and of choice, opposing ossifi ed beliefs and ancient texts
to the advances of science and knowledge, for ‘all writings refl ect the biases and blind
spots of their authors, cultures and eras’ whereas ‘interpretation is subjective and
debatable’; diff erences, like all humans, are ‘magnifi cent riddles’, says the journalist;
the object of his argumentation is prejudice and in support of this he brings several
considerations of church fi gures who opine on prejudice and the understandings of
the Bible, such as an evangelical Christian who teaches ethics at Mercer University:
‘[h]uman understanding of what is sinful has changed over time’, i.e. contraception,
slavery, gender roles ‘have moved far beyond Scripture’. Ross Douthat imagines a
Platonic dialogue with a member of the press in an ‘Interview with a Christian’; the
fi rst topic is on businesses and customers and the notion of identity; declining service
for a reason (‘religious scruples included’) relates to belief and not identity, believes
Douthat, for ‘[d]enying service to gays is like denying service to blacks under Jim
Crow’; this means that refusing service does not apply to an entire class because it is
not ‘a structural system of oppression’ but a ‘handful of shops across the country’, i.e.
the issue at stake is not group identity (therefore it is not a community problem) but
rather a problem of individual discrimination and tolerance (‘these issues are diffi cult
and personal’); when compared to race marriage, Douthat explains that interracial
marriage was not a ‘biblical meta-narrative’ or a Christian inheritance, whilst the
traditional view on male-female marriage is a ‘radical idea separating the early church
from Roman culture’, consequently, heterosexual marriage is a biblical metanarrative;
another debatable aspect that is brought up is the idea that ‘homosexuality isn’t
chosen’ and it should not be a reason for cruelty; this is overturned by the reason that
‘we are all in the grip of an unchosen condition’ (emphasis added); the recent and
modern views on sexuality are, as the journalist names them, ‘post-biblical’ and ‘post-

Christian’; moreover, having to ‘live with the tension between their att ractions and
their faith’ is ‘a cruel delusion’, ‘an impossible position’, which actually is the
condition of all humans, i.e. this controversy is not new; it’s all about the duality
sacred-secular, humanity-God: ‘the Christian idea is that God asks the seemingly
impossible of all of us – and, fortunately forgives us when we fail’.

5. Conclusions

The recent intense debates in the media on the Religious Freedom Restoration Act
confi rm the initial hypothesis of the present paper: the dispute over the understanding
of democratic norms continues and will never come to an end, for it is rooted in
ancestral dichotomies, more or less religious. That the ‘sacred vs. secular’ is in the
human condition is true, but what is interesting is what new meanings this truism
receives once democracies and creeds advance.

As regards the fi rst research question, RFRA is one of the laws that try to give
juridical form to current American representations of freedom and rights in terms of
religion; it is about granting the ‘free exercise of religion’ to ‘persons’ (individuals,
organizations, companies, entities, etc.) and about litt le (‘in the least restrictive means’)
involvement of the government in burdening this free exercise unless there is some
‘compelling government interest’. It has been controversial from the very beginning
for it mingles religion and the state, opposing individual (religious) freedom and
‘government interest’. Moreover, it is a matt er of discord for it establishes limits in
matt ers of tolerance, a fundamental creed in a pluralistic democratic society; it places
a moral issue at the origin of public action and it intertwines morality and legislation.
It has become even more litigious because exercising religious beliefs that could come
against other beliefs or practices could mean discrimination, whether we talk about
individuals or groups involved, i.e. a ‘person’s liberty’ here comes against another
‘person’s liberty’. In other words, it is a law that elaborates on the recognition of
diff erence (on religious grounds), which is an imperative for human dignity, but it
could infringe on the very recognition of diff erence. Furthermore, the free exercise
of religion could imply exemptions from state regulations, which means that such
regulations are not for all, i.e. inequality.

As for the second research question, the media representations of RFRA have
given voice to some contemporary realities related to the tenets involved. Most texts
debated on several interpretations of the law, based on its legal intricacies and mostly
based on the eff ects that contextualization had on the representations of values. The
news stories provided several frames that directed the course of meanings. Months
before the enactment of the Indiana RFRA, news spoke about republicans, divisive
social issues and Christianity, mentioning religious liberty among their campaign
themes for the future elections, i.e. religious freedom is not only a constitutional
right, it is also an electoral weapon; moreover, another frame resulting from this is
its connection to same-sex marriage, hence the discord religious freedom – LGBT
rights; moreover, RFRA is described as a ‘cover for discrimination’, religious freedom

is called discrimination, and even ‘state-sponsored’ discrimination; discrimination is
opposed to fairness and human dignity but the solution to this, it is suggested, would
be non-discrimination ordinances, which means that the Law is expected to solve the
dispute it initiated; another frame resulted from the discussion on the extension of
religious freedom to businesses, namely the ridiculing of juridical vocabulary, and of
law in general, around the meaning of ‘person’, for companies are att ributed religious
beliefs, consequently souls and conscience, an argument against the interfering of
law and politics in religious matt ers; connected to this is also the representation of
religious freedom as conscience vs. for-profi t companies, meaning money, bargain
and consumerist goals, casting doubt upon the ‘conscience’ of such corporations that
may only want to express their opposition to the law in order to adapt to the changes
in public opinion regarding social divisions in general, and same-sex marriage in
particular; the strongest argument of those in favor of the law was that RFRA is not
a new bill and it applied in 19 states without involving gay issues; this is refuted by
the idea of contextualization, more important than the text itself; another frame is
that of conspiracy, tactic, strategy, underlying purpose (of the republicans) in seeing
that the law is directed against the forthcoming nationwide legalization of same-sex
marriage; a democratic pluralistic society, underline some articles, means tolerance,
respect, accommodation, and this is as an argument against both religious freedom
(and RFRA) and LGBT rights for they are both absolutist in their fi ght; the dispute
also revolved around religious freedom as bigotry and prejudice having no place in
an evolving society; another understanding of the tenets in discussion saw this law as
only responding to individual identity problems that do not concern any community.

A new historicist perspective on the debated values would explain the phenome-
non: it is the context that constructs the text, eventually the meaning, regardless the
nature of the text (legal, political, economic, cultural, social, etc.). Whether values
have a correspondence in ‘reality’, i.e. arguing on the nature of the correspondence
between representation, simulation, simulacrum, has not been the issue here; never-
theless, at rhetorical level, the postmodern consideration of the matt er remains valid:
such continuous debates on meanings (of democracy, in this case) contribute to their
indeterminacy. Had these debates come to an end, we would have reached the ‘end
of history’ with the ‘Last Man’ for, with Francis Fukuyama (1992, p. 311): ‘human
life then involves a curious paradox. It seems to require an injustice, for the struggle
against injustice is what calls forth what is highest in man’.

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