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.
Update: I have seen a lot of discussion about whether the intent of this law is discriminatory, particularly with respect to gay people. The text and history elsewhere, as described above, lends support to the proposition that it was not. The rhetoric accompanying the recent push lends support to the proposition that there was discriminatory intent, at least in some circles. Governor Pence said, “this bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it.” But the fact remains that supporters of the bill voted against amendments that would have provided clarity on the issue of discrimination. For example, Sen. Lanane’s proposed amendment was defeated 10-40. It would have added language that said the following:
(b) This chapter does not apply to:
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.”
Paul K. Ogden says
Thanks for a fair discussion of the issue. It’s nice to have someone look at the law objectively and not get caught up in emotion about what they think the law will do, but has never done.
The problem with Scalia’s opinion in Employment Division v. Smith, while you’re correct it creates a much more black and white approach, is it essentially read out of the Constitution the Free Exercise Clause. That’s why there was such a push for the RFRA to overturn that 1990 decision, a push that came from a wide coalition of those on the left and right.
Gary Welsh says
I wouldn’t have voted for either the federal or state law because I believe the protection we need is already found in both our federal and state constitutions. What I detest even more than the advocates of RFRA adding this to the Indiana Code is the vitriol of the opponents. As far as I can tell, this legislative debate is all about justifying the existence of a small group of people on both sides of the issue who make a pretty good living getting paid to flack these divisive issues.
The discussion around this subject has been interesting to watch. Proponents and opponents seem to be barely interested in what it will actually do.
Steely Dan Fan says
Because, quite frankly, it has social consequences outside of its actual legal impact. Regardless of what it does in practice, the message is clear: gay people suck, and are not welcome in Indiana.
And that’s a pretty shitty message to be sending, and sending it is harmful in and of itself, and decent people absolutely should be trying to put a stop to this nonsense.
Jeff Walden says
If the law explicitly contemplated the particular class, I would concur. (I honestly thought for a long time that the Arizona bill several years back did, and was accordingly put off by it. In other words, it seemed like another Romer. I was rather shocked, given news coverage, to find it was not such a thing. And I follow general developments in law significantly more closely than the vast majority of people do, yet I still misunderstood it!) Instead, it prescribes general procedures for handling all sorts of circumstances, it doesn’t apply given sufficient important interests and approach taken by the law, it can be overridden whenever the legislature chooses — and any bad result is the result of private action subject to criticism.
This is worlds different from a Romer-style law that sends an explicit message, that would and should be disfavored.
Jeff Walden says
…which I guess is somewhat nonresponsive to your concern about “social consequences” distinct from legal construction, I’ll concede.
The solution to that seems, to me, that it must be more informed discourse. Otherwise we heighten the incentive to twist policies as far as they possibly can (and beyond that) to attack them. And that’s not good for policy in general, because it harms reasoned debate and limits the range of policies that may even merely be considered. That’s going to hurt “both” “sides”, and many different government policies, in the long run.
There’s money to follow. There are religious institutions that want state money for ‘training’ and they only want the money for the training to be available to their ‘adherents’, as near as I can determine… is This the next shoe to drop and what it will be ‘used’ for in order to flood disciplines with trained adherents? Something lurks in this bill, and it has something to do with this.
Gary Welsh says
Mike, The train already left the station on that one when our Supreme Court read out of our state constitution the prohibition on the funding of religious institutions in order to allow religious schools to receive state funding through the Choice program.
Carlito Brigante says
Well said, Gary. State tax dollars now flow to the religious organizations that run school.
On the subject of schools, will this not allow religious schools to skip the Biology Standard that deals with evolution? maybe even allow public school teachers who do not believe in evolution to not teach the concept, or students in public schools who do not believe in evolution to not be held responsible for that section of the course?
Bill Groth says
The problem, Paul, is that no one really knows or has even thought much about the long-term consequences (intended or otherwise) because the words used are either undefined, capacious or vague. As Doug points out, there was no proven need for this law (the numerous religion sections of the Indiana Constitution provide even greater protections than the federal Free Expression Clause) and no one, including the Governor, can point to a single instance of a history of Indiana infringing upon anyone’s rights to their own religious beliefs and practices, so long as those practices haven’t harmed someone else. This law further divides the people of Indiana by both ideology and religion. It will become a lawyer’s bonanza but a judge’s nightmare. Gary, any reactive anger is understandable given the rejection by the supermajority of the modest Tallian amendment that would have eased the concerns of the GLBT community about the law’s intent. And what message do you think was sent by the optics of Pence surrounding himself in a private signing ceremony with a bunch of Old Testament fire-and-brimstone Orthodox Jews and Christian fundamentalists, with Eric Miller hovering over them, not only to the GLBT community but also to both religious and secular folks who don’t think it’s the place of us humans to judge or to be judged based on our immutable traits? This is an extreme measure designed to attack a non-existent problem passed in the immediate wake of full marriage equality. I can’t understand why anyone would be surprised that it will continue to generate intense emotions from those who understandably feel debased and even threatened by it.
Bravo, Bill. I understand people thinking the responses are extreme. I think the whole “boycott Indiana” move is unwise. Pence was elected by 49%! And yes, this was a boldly stupid overreach – but don’t hurt all of us – instead help us to oust these fools controlled by the rightwing.
BTW, what an obvious statement in that official picture – Miller, Clark and Smith hovering over our Governor like the controlling puppetmasters. Almost ghoulish.
This is going to end very badly. This law doesn’t protects all religions, not just the Christians. What will the long term ramifications be?
Jeff Walden says
The law on its face treats all religions neutrally, just as the federal RFRA does, and has been interpreted by various courts. The Supreme Court cases on the law and its near-sibling RLUIPA have all concerned minority-religion adherents, even concerning hallucinogenic-drug use, where one might naively think the Court’s conservatives (to the extent you think such labels are right or good — I think it’s the wrong way to view the members of the Court, myself) might be prejudiced to vote the other way.
If I was a reichwing small business owner, an opportunist, and held strong religious beliefs, I could see using it to circumvent wage and labor law, health laws. Maybe its just meant to bog down the courts and then declare a need to have a separate judicial system that is “efficient” for handling certain new laws such as this. That’s an old play from an old play book. But I would be a coincidence theorist if I really thought that. I understand it has an effect of even barring certain governmental entities from entering cases brought under it. Read that in another blog.
Well, color me embarrassed! I recently sent Sen. Lanane a message asking how we could get an amendment towards that effect. That is so very frustrating.
Thank you. Your blog is very insightful.
Moving the discussion beyond gays and lesbians, does this law allow:
+ A Christian-owned business the right to not hire a Muslim because the candidate is Muslim?
+ A Christian-owned business the right to not hire a Muslim because the candidate “looks Muslim” but doesn’t necessarily practice Islam?
+ A Mormon-owned business the right to demand that employees not drink coffee on premise?
+ A Muslim-owned business the right to not hire or serve a women who won’t cover all of her body?
+ A Hindu-owned business the right to demand no employee eat meat on premise?
+ A Christian-owned insurance business the right to refuse to provide insurance to a woman who has had an abortion because of that choice, even if that Christian’s church is pro-abortion (yet the Christian’s view of abortion departs from that of their Church)?
+ A GLBT-friendly church the right to refuse to marry or even entry Christian fundamentalists?
I’m wondering how actions based on this law will be substantiated.
I am also really interested in these questions as well. Another circumstance: “Could an atheist restaurant owner refuse to serve Christians for saying grace?” (you know, using the law against the very people who wanted it in the first place.)