These conflicts happen all the time. Sometimes, balancing them is easy. In January, the Supreme Court ruled 9-0 that the state of Arkansas had to allow a Muslim prison inmate to grow a short beard. It weighed the state’s interests in security against the inmate’s First Amendment rights, and the case was a slam dunk. (Then again, it was deemed worthy of review, so maybe not.)
Other times, the balance is difficult. In a powerful concurring opinion in the Elane Photography case, a New Mexico judge confessed that he struggled with his decision. The law was clear: if you open a business, you play by the rules of the market, and that includes anti-discrimination laws. But he also understood the religious convictions of the photographer, and the difficult choice he was forcing her to make.
Indiana’s RFRA, like others, would likely cause that case to come out the other way. And so, both RFRA’s supporters and opponents are right. Indiana’s RFRA, like others, is both a “license to discriminate” and a “protection of religious freedom.”
Is there no way forward, then? Must the two sides continue to talk past one another, each more irate than the other?