Yuval Levin argues that the particular liberty being protected by Indiana’s version of the Religious Freedom Restoration Act isn’t the First Amendment’s guarantee of free exercise of religion; it’s the Amendment’s prohibition of the establishment of a church by the state. Levin explains why James Madison added the latter guarantee to the Amendment, and why it applies here:
[Madison believed] that no one ought to be compelled to affirm as true a religious tenet he took to be false and that no one should be compelled to participate in a religious rite that violated his own understanding of his religious obligations. This is not exactly an extension of the traditional Anglo-American case for toleration. It is a Madisonian correction to the Lockean ideal of religious toleration in a society with an established church.
But this is also the essence of the argument that a wedding vendor who wants to remain free to refrain from participating in a same-sex wedding would advance. The question of the definition of marriage is, for many people, a fundamentally religious question. It is, of course, also a civil question in our country. But some religiously orthodox wedding vendors are finding themselves effectively compelled by the civil authorities to affirm an answer to that question that violates their understanding of their religious obligations. They would like to be relieved of that compulsion, but they are being told they can’t be because the larger society’s understanding of the proper answer to the question should overrule the answer prescribed by their religious convictions, and if they want to participate as business owners in the life of the larger society they must give ground.
They are in this sense more like religious believers under compulsion in a society with an established church than like believers denied the freedom to exercise their religion. Liberals are in this respect right to say they’re not trying to kill religious liberty. They’re trying to take it back to something like the form it had in the Anglo-American world when the Anglo-American world had a formal state religion—except now the state religion is supposed to be progressive liberalism.