Last week, Indiana Governor Mike Pence (R) signed his state’s Religious Freedom Restoration Act. Social media went a bit, well, bonkers. Hillary Clinton tweeted, “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT.” The CEO of SalesForce, headquartered in Indiana, says they will pull out. Tim Cook, the chief executive of Apple, has called religious freedom laws “dangerous” and likens them to Jim Crow laws.
What’s all of this about?
First, the federal Religious Freedom Restoration Act (RFRA) was signed by then-President Bill Clinton in 1993. This act re-instated what is known as the Sherbert Act, in which the Supreme Court:
…set out a three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion.
The first prong investigates whether government has burdened the individual’s free exercise of religion. If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual’s free exercise of religion.
However, under this test not all burdens placed on religious exercise are unconstitutional. If the first prong is passed, the government may still constitutionally impose the burden on the individual’s free exercise if the government can show1. it possesses some compelling state interest that justifies the infringement; and
2. no alternative form of regulation can avoid the infringement and still achieve the state’s end.
The federal RFRA says that “strict scrutiny” must be applied when determining if freedom of religion has been violated. The burden of proof lies with the government. The government cannot impose a penalty on religious practice, nor keep away any benefits of one’s practice. Further, the government cannot infringe on any person’s freedom of religion without showing compelling cause AND that there is no alternative to such infringement.
The federal RFRA was originally based on a case regarding the religious use of peyote by Native Americans.
Several states have RFRA laws; Indiana is now the 20th state to enact such a law. Is there a significant difference between these state laws and the federal one? Not really. Look at the federal law above one more time, and then take a look at Indiana’s RFRA:
A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Indiana’s law (like some other states) specifically says such a law applies to businesses as well as individuals. John McCormack at The Weekly Standard:
Indiana’s RFRA does not grant a license to discriminate. First of all, the state of Indiana, like 28 other states, has never prohibited discrimination based on sexual orientation at public accommodations. Even without such laws in most states, discrimination doesn’t commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash.
It is true that several local ordinances in Indiana prohibit discrimination on the basis of sexual orientation, but RFRA does not declare that those ordinances are invalid if someone requests a religious exemption. Again, RFRA simply establishes the balancing test courts must apply in religious freedom cases.
Sarah Torre at The Daily Signal calls the press reactions “gross mischaracterizations and say they “ignore the truth” of the Religious Freedom Act.
The Indiana Catholic Conference, which includes every diocese in the state, released a statement supporting the Act in February. It states, in part:
Until recently, it was simply unthinkable that one person would attempt to force another to act contrary to that person’s religious conscience. While American law and culture reserved the right to act against religious practices when there was clear evidence that they directly endangered the public health and safety, it was simply not acceptable to force a person to choose between God and Government. Notwithstanding the Hobby Lobby decision, this has changed in many respects in many states’ laws and regulations.
SB 101 Religious Freedom Restoration Act establishes a legal standard that protects state interests as well as individuals and religious institutions. When there is a compelling state interest in the law or regulation, it must be done in the least restrictive manner thus protecting both the common good while respecting the conscience and religious freedom of all affected.
Douglas Laycock, a professor at the University of Virginia Law School, explains his thought on the federal and state’s RFRA:
There are now twenty states with RFRAs, and eleven more that have interpreted their state constitution to provide the same level of protection. These 31 states include all the big states except California: Texas, New York, Pennsylvania, Florida, Michigan, Ohio, Illinois. You had probably never heard anything about any of these laws, except for Hobby Lobby, because they haven’t done anything controversial.
There are hardly any cases about discrimination, and nobody has ever won a religious exemption from a discrimination law under a RFRA standard. (Churches are exempt when sued by their ministers, but that is a separate constitutional rule. Some discrimination laws have specific exemptions for churches or religious organizations. That is very different from trying to persuade a court that anti-discrimination laws do not serve compelling government interests.)
So what kinds of cases are RFRAs really about? They are about churches feeding the homeless; sometimes the city or the neighbors object. They are about Muslim women wearing scarfs or veils. They are about Amish buggies. They are about Sabbath observers. They are about church bells. They are about all the unexpected ways in which a great diversity of religious practices come into conflict with a great diversity of laws and regulations. And usually, the government wins. These laws have been under enforced, not over enforced. [emphasis added]
And of course there is Hobby Lobby, decided on the explicit premise that the effect on female employees would be “precisely zero.” The government had in place a system for delivering free contraception without making the employer pay for it. Hobby Lobby is one of the very few high profile cases, and one of the minority of wins for religious objectors. But it did not say that religious exemptions under RFRA can require employees to do without.
It would seem that those who oppose Indiana’s law have their work cut out for them. They’ll need to not only go after 20 states, but the federal government, regarding a law that isn’t what they think it is. As Shakespeare would say, it all appears to be much ado about nothing.
For further reading:
GenCon and the Indiana Religious Freedom Restoration Act
UVA Law Prof Who Supports Gay Marriage Explains Why He Supports Indiana’s Religious Freedom Law
Indiana Governor: This Is the Same Religious Freedom Law Obama Voted for in Illinois
