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The Fox News Campaign To Defend Indiana's Anti-Gay "Religious Freedom" Law

April 02, 2015 3:14 pm ET by Carlos Maza

Fox News has been at the forefront of defending Indiana's controversial "religious freedom" law, falsely portraying the measure as harmless and whitewashing the anti-LGBT extremism that motivated the legislation.

On March 26, Indiana Gov. Mike Pence (R) signed his state's "Religious Freedom Restoration Act" (RFRA) into law. The law -- which has been criticized by religious leaders, the business communitylegal scholars, and even the Republican mayor of Indianapolis -- provides a legal defense for individuals and business owners who cite their religious beliefs while discriminating against LGBT people.

The law triggered a furious national backlash, with major companies, celebrities, and government leaders condemning the measure for potentially encouraging discrimination against LGBT Hoosiers. Pence and top Indiana Republicans eventually pledged to "clarify" the law by adding language that explicitly prohibits RFRA from being used as a defense for discrimination in court.

Throughout the controversy, a number of Fox News personalities whitewashed the law's discriminatory purpose and misleadingly compared Indiana's RFRA to other "religious freedom" laws -- a comparison that even a Fox News anchor acknowledged was inaccurate.

Laying The Groundwork For RFRA

Long before Gov. Pence signed Indiana's RFRA into law, Fox News was providing the bogus horror stories needed to justify sweeping "religious freedom" laws. For months, Fox has touted the stories of a handful of anti-gay photographersbakers, and florists who refused to provide services to same-sex couples and were then sued for violating non-discrimination ordinances. The network has repeatedly sided with the anti-gay business owners, describing their discriminatory actions as part of a "fight for faith" and criticizing non-discrimination laws for requiring businesses to treat gay customers equally:

In early 2014, those horror stories were the primary argument used to justify Arizona's SB 1062, a similar "religious freedom" bill that would have allowed business owners to turn away gay customers on religious grounds. That legislation, which similarly garnered national condemnation, was eventually vetoed by Arizona Gov. Jan Brewer (R), who described the bill as a solution in search of a problem.

At the time, Fox News attempted to distance itself from the backlash against SB 1062, with Megyn Kelly calling the measure "potentially dangerous" and several other commentators publicly questioning the need for the law.

But before long, Fox had returned to championing business owners who refused to serve the weddings of same-sex couples. 

The desire to protect anti-gay wedding vendors has been the driving force behind the push for expanded RFRAs in states like Indiana, Georgia, and Arkansas. Fox News contributor Erick Erickson, who has campaigned aggressively for Georgia's RFRA, specifically cites anti-gay business owners as needing legal protection from gay customers.

Anti-gay groups in Indiana cited those same anti-gay businesses when making the case for the state's RFRA. In fact, as Slate's Mark Joseph Stern points out, giving businesses owners the right to refuse service to gay customers "was the point" of Indiana's "religious freedom" law, which helps explain why Gov. Pence was surrounded by anti-gay activists when he signed the measure. Indiana Republicans were reportedly warned that RFRA could allow for discrimination against LGBT people, yet they refused to adopt amendments to the law that would have prevented the law from being used as a license to discriminate.

The emergence of a national push for expanded state RFRA laws hasn't occurred in a vacuum -- it's happened in the context of a steady drumbeat of fear mongering by conservative media, led by Fox News, over the plight of anti-gay business owners.

Defending Indiana's "Religious Freedom" Law

Days before Indiana's RFRA became a national controversy, Fox News was defending the measure as a benign, common sense approach to protecting religious liberty. During the March 26 and 27 editions of The Real Story, host Gretchen Carlson falsely compared Indiana's RFRA to other "religious freedom" laws across the country, as well as the federal RFRA that was adopted in 1993.

That comparison is wildly inaccurate and misleading -- a point that Fox's own Bret Baier made during the March 30 edition of Happening Now. Indiana's RFRA is uniquely broad in its scope, making it more likely to be invoked in non-discrimination complaints. As Baier noted in an April 1 blog post, "The Indiana law *is* different... more broad than all others ... except South Carolina."

Baier's correction eventually permeated Fox's broader reporting about the law, but not before a number of Fox News personalities incorrectly compared Indiana's RFRA to other "religious freedom" laws across the country.

Following Gov. Pence's disastrous March 29 interview on ABC's This Week, during which he repeatedly failed to answer whether RFRA could be used to deny service to gay customers, Fox's public relations campaign went into overdrive.

At the outset, the network's defense of the law took many forms. During the March 30 edition of Outnumbered, co-host Harris Faulkner suggested that "Democrats are picking a fight" over an otherwise uncontroversial law. On Fox's Special Report, NRO's Jonah Goldberg accused gay rights groups of "going across the battlefield shooting the wounded" by refusing to allow business to refuse service to gay couples, and Sean Hannity invited Ann Coulter to once again equate Indiana's RFRA with other "religious freedom" laws.

But it was Megyn Kelly -- who, in spite of her record of misinformation, is at times credited by observers as a serious journalist -- who emerged as one of the law's biggest defenders on the network. On March 30, she appeared on The O'Reilly Factor to state that the Indiana's RFRA is "not that controversial" and accuse LGBT activists of "exploiting" the law to "prove their bona fides on gay and lesbian rights issues." Later, during The Kelly File, she hosted anti-gay hate group leader Tony Perkins while denying that RFRA was passed in order to create a legal defense for discrimination. She invited Perkins back on her show to defend the measure the next night, and suggested that Indiana's RFRA wasn't discriminatory because anti-LGBT discrimination is already legal in Indiana. Kelly ignored that the state's "religious freedom" law could circumvent non-discrimination policies in municipalities across the state, including in Indianapolis.

And on April 1, The Kelly File opened with a segment sympathizing with an Indiana pizza shop that garnered widespread criticism after its owners told a local news outlet that they intended to refuse to serve same-sex weddings under Indiana's RFRA. Kelly invited GOP presidential hopeful Mike Huckabee to condemn public opposition to Indiana's RFRA and asked if he believed opposition to the law was evidence of "discrimination... against Christians."

As outrage over Indiana's RFRA reached a fever pitch, the crew of Fox & Friends rushed to downplay criticisms of the law. During the March 31 edition of the programElisabeth Hasselbeck lamented that the "mainstream media" was unfairly criticizing the "religious freedom" law, again suggesting that Indiana's RFRA mirrored laws in other states. Co-host Steve Doocy announced that the law, which was explicitly crafted to protect anti-gay business owners, wasn't actually anti-gay. Laura Ingraham appeared on the program to decry the "hyperbole" being used to describe the measure, asking "do we really want to make religious people... feel like they're second-class citizens?" The Fox & Friends crew even hosted an exclusive interview with Gov. Pence, asking him softball questions like "what do you say to your critics who are interpreting your good intentions this way?"

The "media are misrepresenting the law" talking point was widely repeated on Fox, which ironically continued to peddle misinformation about the law as the week went on. 

On Outnumbered, co-host Andrea Tantaros falsely suggested that no business would refuse service to a gay couple, declaring that she doesn't "see Christian businesses refusing to serve eggs to anyone." Fox senior political analyst Brit Hume declared that Indiana's law couldn't be discriminatory because it "never mentions gay people," ignoring that proponents of the measure explicitly intended RFRA to be used as an excuse to refuse to serve same-sex couples. 

During a Tuesday afternoon press conference, Gov. Pence pledged to clarify the law to ensure that it wasn't used to justify discrimination, but blamed the media for misrepresenting RFRA:

[T]his was grossly mischaracterized by advocates who oppose the bill and also by, frankly, some very sloppy reporting for the first several days.


[W]hat explains the — the concerns that have been expressed across our state and across this nation is the mischaracterization.

Several Fox personalities lamented that Pence felt the need to clarify the law. Gretchen Carlson said a guest had a "good point" that RFRA's supporters are "bowing to the pressure of celebrities and businesses." O'Reilly similarly decried Pence's announcement as evidence that "the gay rights lobby in America has now overwhelmed, overwhelmed the Judeo-Christian tradition lobby."

Others continued to attack Pence's critics. Tucker Carlson called LGBT activists "jihadis," while George Will accused Apple CEO Tim Cook, who publicly condemned Indiana's RFRA, of being a hypocrite for doing business with anti-gay countries like Saudi Arabia. On Hannity, anti-LGBT pastor Robert Jeffress condemned Gov. Pence for his "capitulation to the far left":

For the most part, Fox's coverage of the Indiana controversy focused on attacking the measure's critics and denying that the law would allow, or was intended to allow, for anti-gay discrimination. During the April 1 edition of Fox & Friends, Doocy suggested that laws like Indiana's RFRA were actually intended to protect groups like Apaches and Sikhs, calling RFRA "a good thing to protect people of faith":

Fox News' relentless defense of Indiana's RFRA speaks volumes about the remarkable position that the network has created for itself. For over a year, Fox has been helping anti-gay groups turn business owners who refuse to serve gay customers into right-wing heroes, decrying basic non-discrimination laws as attacks on religious freedom. Those horror stories are useful for appealing to socially conservative viewers, but they can also fuel controversial Republican efforts to enshrine anti-LGBT discrimination into law. During the debate over Arizona's "religious freedom" law, for example, Fox News was forced to back away from the legislative quagmire that it helped create, recognizing how poorly the public was reacting to the idea of allowing business to refuse service to gay customers.

But rather than distancing itself from Indiana's "religious freedom" law, most Fox News personalities defaulted to playing dumb, accusing media outlets and LGBT activists of misrepresenting what the network describes as a benign, neutral attempt to protect everyone's religious freedom.

It's a narrative that denies the mounting evidence that laws like Indiana's RFRA are explicitly intended to give anti-gay business owners a legal defense for refusing to serve gay customers. Fox News' defense of Indiana's RFRA intentionally whitewashes the anti-gay animus that has for months motivated right-wing efforts to protect "religious freedom" -- animus that Fox itself has been responsible for bringing to a national audience.


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