WASHINGTON, April 3, 2015 – Nineteen states and the federal government enacted religious freedom restoration acts, or RFRAs, prior to Indiana’s attempt at similar legislation.
The function of every RFRA on the books is the same: They require that the government demonstrate a compelling interest before interfering in the exercise of religion, and if the interest is demonstrated, the burden placed on religious practice must be minimized.
The Indiana RFRA is no different.
Critics have pointed to two differences between the IRFRA and the federal law. They consider these differences fundamental. The first is that the IRFRA allows for-profit businesses to assert the right to a free exercise of religion, while the federal RFRA does not.
The second is this passage:
“A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”
The IRFRA makes the free exercise right a defense against a private lawsuit, not just against a suit involving the government or a government agency. It is a defense not just for an individual, but for a for-profit business.
These differences between the IRFRA and the federal RFRA are not as significant as the critics claim. The Supreme Court’s decision in Burwell v. Hobby Lobby redefined the RFRA to include closely held, for-profit firms.
Indiana’s RFRA makes explicit the court’s interpretation of the federal law.
Four federal courts of appeals and the Obama Justice Department have addressed the issue of the applicability of the federal RFRA to suits not involving the government: It applies. To be clear, the IRFRA makes explicit the interpretation President Obama’s own administration has placed on the federal RFRA.
The Indiana law explicitly says what the courts and the Obama Justice Department have decided the federal RFRA says. The Indiana law does not deviate significantly from the federal law.
The Indiana law does not have the strongest protections for religious practice among the set of RFRAs. That honor goes to the Connecticut RFRA. The IRFRA disallows a “significant” burden on religion. The CRFRA omits the word “significant,” thus banning any burden on religion.
That remarkable fact seems to have escaped the notice of Connecticut Gov. Dannel Malloy, who plans to ban official travel to Indiana in protest of the Indiana RFRA.
Malloy’s response seems hypocritical, but in general the negative response has been closer to hysterical. Opponents have claimed that the Indiana law is worse because Indiana, unlike Connecticut, has no state law banning discrimination against gays and lesbians.
Their logic is tortured and unclear. If Indiana does not protect gays and lesbians, then its RFRA can’t possibly overturn protections for gays and lesbians. The IRFRA can’t permit discrimination because discrimination is already allowed under Indiana law.
In any case, the language of the IRFRA does not create or endorse discrimination in public accommodations against members of the LGBT community. It says only that, if the state chooses to pass laws on the matter that place a burden on religion, the state must demonstrate a compelling interest and ensure that the burden of the laws be minimized. Like the federal law, it requires the same test and standard if the person claiming a burden is a corporation.
The Indiana legislature produced a bill to change the law; that bill was signed into law Thursday by Gov. Mike Pence. The fix is designed to ensure that businesses will be unable to use the law to discriminate against gays and lesbians.
While the details of the fix are not yet clear to this writer, it appears that it leaves private individuals who run for-profit businesses open to criminal prosecution for discrimination against gays and lesbians. That aspect of the fix has drawn sharp criticism from organizations like the Family Research Council and the Heritage Foundation.
The IRFRA is not extraordinary among RFRAs, but it has elicited extraordinary vitriol as well as passionate support. The discussion is clearly not about the RFRA itself, which many of those arguing over it seem not to have read.
Nor does the discussion take into account the realities of the federal RFRA, with many of the strongest critics apparently unfamiliar with Hobby Lobby, rulings by the federal courts of appeals or decisions by the U.S. Department of Justice.
The RFRA is a Rorschach test, a shibboleth, a test of ideology. If Pence planned to run for president, it is probably also a body blow to those aspirations. The hysteria leading up to its passage and following its signing is a testament to the irrationality of American political debate.
It fills us with comfortable assurance to realize that, however it ultimately resolves, Americans will eventually get the laws they so richly deserve.