Last week, Indiana committed a human rights atrocity by signing a law that will “enable anyone to discriminate against anyone else, with no fear of government intervention or punishment, merely by citing their sincerely held religious beliefs.” The outcry from gay rights groups has been overwhelming, and gay celebrities like former Star Trek star George Takei and NBA player Jason Collins have also spoken out against the new law. Major entertainment and business organizations, including the NCAA, multi-million dollar gaming convention GenCon, cloud computing giant Salesforce, and popular business reviewing platform Angie’s List, have all either voiced concerns about the law’s impact on LGBT persons or have openly threatened to pull their business operations from the state. Christians have also come out overwhelmingly against the law, as it contradicts biblical principles…
… At least, that’s the story that you’ve heard if you’ve been anywhere on social media this past week. While gay rights leaders have successfully framed Indiana’s Religious Freedom Restoration Act as hurting gay rights, just as they did with Arizona’s law last year, a lot of important facts about Indiana’s law–what it actually says, and what it will do–have been caught up in the politicization of the issue. As the Washington Post noted, Indiana has become “the battleground over religious freedom that Arizona never was.”
Here are six facts you need to know to truly understand what is going on with Indiana’s RFRA.
1) RFRA laws broadly target free exercise, not just same-sex marriage.
SB 101, the Indiana law everyone is up in arms about, was passed on the model of the federal Religious Freedom Restoration Act. Effectively, RFRA was designed to broadly protect religious practices and beliefs by requiring government entities to satisfy the compelling interest test when a law that they enact might infringe on a religious practitioner’s beliefs. The compelling interest test is a part of strict scrutiny review, the highest form of judicial review for a legal issue. Government entities must demonstrate that they have a compelling and legitimate interest in passing the law, and that the law was designed to infringe on that liberty using the least restrictive means possible.
RFRA was passed in 1993 to restore the compelling interest test for First Amendment free exercise issues that had been done away with by the Supreme Court in Employment Division v. Smith. In Smith, the Supreme Court ruled that religious beliefs were not exempt from “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [the] religion prescribes (or proscribes).” While there was already an understanding that religious beliefs did not exempt someone from criminal laws, Smith radically reduced the government’s burden of proof in religious freedom cases, lowering the bar to the lowest level of judicial review, rational basis.
2) RFRA laws don’t guarantee an automatic win for religious believers.
Effectively, RFRA creates a legal framework for people to rely on when their religious beliefs are negatively impacted by a law. The federal RFRA sets forward that a person who has standing “may assert [the] violation [of his or her religious beliefs] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Though a small number of other states, particularly Kansas, have passed other laws where religious interests always win when it comes to gay marriage issues, RFRA laws based on the federal model merely ensure that the religious party can assert their beliefs in court.
As Douglas Laycock, a law professor at the University of Virginia, explained in the context of Arizona’s attempt to modify its own RFRA laws (an attempt that Governor Jan Brewer vetoed under a similar massive wave of protests), simply creating a legal framework is far from an automatic win:
…[N]othing in the amendment would have said who wins… SB1062 did not say that businesses can discriminate for religious reasons. It said that business people could assert a claim or defense under RFRA, in any kind of case (discrimination cases were not even mentioned, although they would have been included), that they would have to prove a substantial burden on a sincere religious practice, that the government or the person suing them would then have the burden of proof on compelling government interest, and that the state courts in Arizona would make the final decision.
Consequently, many religious believers find themselves on the losing end of RFRA claims when a government entity’s compelling interests in maintaining a policy are upheld by the courts. One prominent example is in the 2014 case Priests for Life v. U.S. Dept. of Health and Human Services, where Catholic church groups were unable to convince the D.C. Circuit Court that the Obamacare exception requiring their groups to file paperwork expressing their opposition to contraceptives still made them morally complicit in providing birth control. Another example is the 2008 case Navajo Nation v. U.S. Forest Service, in which the Navajo tribe failed to convince the Ninth Circuit that the Forest Service’s use of artificial snow made from recycled water on a mountain their tribe believed was sacred would spiritually taint the mountain and burden their religious practice.
3) Indiana’s RFRA law is almost identical to the federal RFRA.
When the Supreme Court ruled that the federal RFRA did not apply to the states, this created a strange paradox: because states were only bound by Smith, state legislatures could pass laws that more radically harmed religious beliefs than could the federal government. State legislatures, in response, began passing their own versions of RFRA to prevent state and local government agencies from irresponsibly harming religious beliefs and practices.
Indiana’s SB 101, along with including some definitions of the terms used in the law, sets out the following legal standard:
[A] governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. 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.
This text is nearly identical to the federal RFRA, which reads as follows:
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except… if it 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.
(Above emphases mine.)
4) Only three differences exist, and they aren’t a huge deal.
As South Texas College of Law professor Josh Blackmon explains, there are only three significant differences identified between the two laws, and the first two are essentially minor tweaks. First, the Indiana law includes actions that are “likely” to burden religious beliefs, not just those that actually do. This, as Blackmon points out, isn’t a huge deal: “In the case of Hobby Lobby a pre-enforcement challenge was brought, claiming that they were likely to have a substantial burden. No burden was ever inflicted.” The addition of “likely” basically asks if the religious party has a chance to win on the merits of its argument. Second, the Indiana law includes corporate entities in its language. Blackmon explains this as well: “Recall that the Dictionary Act, which applies to RFRA, defined a ‘person’ as a ‘corporation.’ Only Justices Ginsburg and Sotomayor dissented from this part of Hobby Lobby. In that decision, Justice Alito (roughly) defined a corporation protected by RFRA as a “closely-held” one. … [The Indiana law] tracks the federal standard rather closely.”
The third difference, arguably the biggest, is that Indiana law includes actions “taken by an individual based on state action.” This was probably included to address situations like the New Mexico wedding photographer case, in which the New Mexico Supreme Court ruled that its own state’s RFRA law didn’t apply to lawsuits raised by private parties. Because of the ambiguities in RFRA, federal courts are split on whether or not RFRA should apply in private party lawsuits. However, as Blackmon points out, Eric Holder’s Justice Department said as recently as 2012 that RFRA should extend to private party lawsuits.
It is noteworthy that Indiana wrote its law specifically to address the issue of private parties. But as far as what the law is doing, this addition doesn’t change much.
5) RFRA laws are the American norm, not the exception.
As this map from 2014 demonstrates (courtesy of the Washington Post) demonstrates, RFRA-like laws and legal protections for religious liberties are the norm rather than a radical exception. At the time of the map’s publication, eighteen states had passed RFRA legislation, and an additional thirteen states had enacted the same types of heightened religious protections through state court rulings. With Indiana joining in, twenty states have passed RFRA laws, making roughly thirty-one states that have RFRA-level protections for free exercise currently either on the books or in state case law.
Finally, and (arguably) most importantly…
6) RFRA laws don’t enable broad-based discrimination–and probably couldn’t, even if someone wanted them to.
Michael McConnell, a Stanford Law professor and former appellate court judge, framed the issue plainly: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”
The reason that RFRAs are currently being scrutinized is because of the cultural battle being waged between religious groups and civil liberties activists working in support of gay marriage. Whereas the original RFRA was almost unanimously passed in 1993, in large part due to the concerns that religious groups could be oppressed by government, the current political and cultural climate has increasingly featured traditional Christians as the group doing the oppressing–and many mainstream media outlets like CNN have followed the same line of thinking when framing their own articles. Both as a consequence and a byproduct of this shift, some of the same civil liberties groups that supported RFRA laws in the past have now changed sides to oppose RFRA laws like the one Indiana just passed.
RFRA laws focus primarily on actions associated with religious beliefs, not identities. As The Weekly Standard‘s John McCormack points out, “In the real world, the debate concerning gay rights and religious freedom has focused on a handful of cases involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings.” In those cases, the tension is always found in the context of the interaction between the customer and the business: whereas the action of same-sex marriage is opposed by the religious business owner, the identity of the customer as an LGBT person is the grounds on which the various state courts have found there to be discrimination.
This act versus identity distinction is best demonstrated by the case of the florist in Washington State. Barronelle Stutzman had both employed gay individuals and sold to gay customers for years without any issues, and only expressed her concerns when a longstanding customer asked her to make arrangements for his same-sex wedding. For Ms. Stuzman, the act of gay marriage was something she could not support, even though the identity of her customers and coworkers as gay people had posed absolutely no problems for her. However, the customer she refused to make wedding arrangements for sued on the grounds that she had discriminated against his whole identity as a gay person, and not just the act of same-sex marriage.
Ultimately, RFRA laws aren’t designed to allow broad-based discrimination based on someone’s identity. RFRA laws and protections validate the religious person’s desire to not act in a manner that goes against their beliefs, which would permit them to raise their belief as a defense if they are sued for refusing serve someone hosting a same-sex wedding. However, RFRA laws and protections don’t speak on issues that relate to other peoples’ identities, and as Professor McConnell stated, they never have before. Doing so would require the business owner to argue that serving or working with an LGBT person in any general way, not just in relation to a particular action or event with religious significance for said business owner, substantially burdens his or her religious beliefs. It would be an understatement to say that this argument would be a hard pill for any court to swallow.
Even though Indiana has not passed laws barring discrimination against LGBT persons in public accommodations (which the majority of states have also not done, as this Human Rights Campaign map can confirm), RFRA laws have never been used to seek the kind of broad-based discriminatory exception raised by the left as the “threat” RFRA poses to LGBT rights. Unless some other law were passed that made discrimination against gay people more permissible–which, given the current political climate, would be impossible–it is highly unlikely that any Indiana state court or the Seventh Circuit Court of Appeals would allow that history to change.
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A lot of misinformation and bad publicity has been traveling around online as a result of Indiana’s law. Let’s set the record straight: while we can and should talk about protecting LGBT members of our society, we should also have that conversation based on facts and not hype. RFRA laws were never designed to harm LGBT persons, but rather to protect religious practitioners of all stripes from the oppression they may face at the hands of government.
Finding ways to further secure everyone’s liberties, and not just one group’s at the expense of others, should be the path we choose moving forward.
UPDATE 3/31/15: This article was edited to correct a mathematical error in the total number of states listed as having RFRA laws.