By popular demand, I’m following up on SB 101, dubbed the “Religious Freedom Restoration Act.” I don’t know that I have a lot of value to add, but I’ll go ahead and supplement my earlier post with what I think might be relevant information.
What does it do?
The law subjects government action to “strict scrutiny” if the government “substantially burdens a person’s exercise of religion.” Strict scrutiny means that the burden is permitted only if the burden is the least restrictive means in furthering a compelling governmental interest. If the government imposes such a burden without satisfying the strict scrutiny review, the court can enter an order preventing, correcting, restraining or abating the government action, awarding compensatory damages, and awarding attorneys’ fees.
On the national level, the federal RFRA was a response in 1993 to the 1990 Supreme Court case of Employment Division v. Smith. Smith challenged a decision that his employment termination was for just cause (and therefore he was not entitled to unemployment benefits) where he failed a drug test after using peyote as part of a religious ritual. The court held that, even though the unemployment benefits arguably burdened his free exercise of religion, such a burden was permissible so long as the burden arose out of a neutral law of general applicability. The alternative, according to the decision would be “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Congress felt that this opinion interpreting the scope of the First Amendment’s free exercise clause was insufficiently solicitous of religion and, therefore, passed a federal law that provided for more expansive protections. However, the Court determined in 1997 in the case of City of Boerne v. Flores that RFRA was unconstitutional as applied to the states. Congress has some leeway to regulate the states, particularly arising out of the Fourteenth Amendment, but the court did not see this free exercise legislation as having a remedial purpose within the scope of section 5 of the Fourteenth Amendment.
The Volokh Conspiracy has a pretty good discussion.
Do I think it is a good law?
Personally, I don’t. Like I said earlier, the definitions are vague and I think it’s a solution looking for a problem. In particular, I think determining what constitutes a substantial burden to a person’s exercise of religion is very problematic. Additionally, I don’t believe there is cause to elevate the right to free exercise of religion above other rights.
Perhaps I’m wrong, but I don’t think there is a lot of meaningful standards that allow a court or litigants to challenge a plaintiff’s assertion that he, she, or it really objects on the basis of religion and that the religious belief is sincerely held. If a person largely ignores their religion and disregards the less convenient mandates of the stated religion until it’s time to raise this legislation as a shield or a sword, it’s still going to be problematic to argue that their religious profession is pretextual. Beyond that, showing that any governmental action is the “least restrictive means” is a very high hurdle. Although, I confess that my knowledge of “strict scrutiny” jurisprudence is mainly in the context of race. In that context, it has been described as “strict in theory, fatal in fact.” In other words, once the strict scrutiny review is selected, the governmental action always failed. However, in that Volokh Conspiracy link above, “strict scrutiny” in the religious burden context was described as “strict in theory, feeble in fact.” But that was from 1960s era judicial review. Right now, I guess knowing how strict scrutiny would play out in practice is a work in progress.
If it’s o.k. for lots of other states, isn’t it o.k. for Indiana?
I think there is some variant of state level RFRA in 20 other states. So far as I know, this has not caused great injustice. As a legal matter, this might be a tempest in a teapot. If an inmate can claim a religious reason and be entitled to a short beard instead of following the jail’s rules on being clean shaven, is that a big deal? So, the law’s proponents might be correct that the practical effects won’t be, by and large, that significant. (Which raises the question – what real need did we have for the legislation in the first place?)
But, as a political matter, context matters. RFRA started getting pushed here, so far as I can tell, in response to decisions having to do with gay rights and reproductive rights. Legally, it might permit religious rights to trump the civil rights of gay people and the reproductive rights of women. Politically, it sends a message of hostility to those who don’t share politically conservative religious sensibilities. And, at least in the short term, Indiana is going to experience some backlash due to that political message. I think we saw some evidence of that backlash when Gov. Pence felt obliged to sign the law somewhat furtively behind closed doors.
Given that I’m not religious, that I do support equal rights for gay people, that I do support reproductive rights for women, and that I do not support potentially arbitrary exceptions to laws (particularly those of local government) of general applicability, it’s not surprising that I don’t support this legislation.