Archive | March 2015

Indiana’s RFRA – A Second Look

I would like to thank everyone who took the time to read my post on Friday regarding Indiana’s Religious Freedom Restoration Act. I was not expecting such high readership but it seems that several people had the same questions I did. I have been reviewing the comments – which pro or contra have been predominantly constructive and civil – as well as following the news and recent developments, including Gov. Pence’s appearance on This Week and his plan to clarify INRFRA.

There are several issues and questions surrounding this law and based on a survery of questions I have received, I will attempt to address a few as the day goes on.

The ultimate issue is going to be whether protection of LGBT rights is a “compelling” enough government interest when balanced against relgious freedom. See Ind. Code § 34-13-9-8(b) (“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”). How might this issue play out?

Let’s begin with the legal basis of INRFRA. While I linked it in my previous post, please take the time to read this letter from 16 law professors to Sen. Brent Steele, who co-authored the bill, and to also review the legislative history of the law, including proposed amendments that did make it into the bill (note Sen. Tim Lanane’s proposed amendment which did not make the cut).

Looking at the above letter, there are some statements which I thought stood out and lend to the controversey at issue.

For many religious believers, weddings are inherently religious events in which their participation must conform to religious obligations. This creates a serious conflict for religious individuals who personally provide creative services to assist with weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption.

(Letter, p. 6.)

I happen to agree with the conclusion. The reason we do not know if an exemption would apply though is because there is no precedent that would suggest the State has a compelling interest in protecting LGBT rights. While there are human rights ordinances in place at the city and county level, would those ordinances be deemed to be a “compelling” government interest in the eyes of the State? There is no precedent for or against any such finding that I have seen. Cases that have addressed the issue had applicable human rights laws at the state level. This lack of precedent is also due in part to the only recent ratification of gay marriage amongst most federal circuits.

What we do know is that the legislation is designed to give greater and clearer protection for religious freedom

By explicitly codifying this test in the Indiana Code, the proposed legislation would give religious freedom more transparent and more secure protection, explicitly instructing judges that religiously motivated conduct is legally protected, subject to the compelling-interest test.

(Letter, p. 4.)

So, it’s fair to say that we are entering unknown legal territory but the framework in place in Indiana is one that favors religious freedom over LGBT rights.

Is it inaccurate to say that this legislation is just like the federal statute? Yes.

Aside from being procedurally engineered to get to a courtroom ASAP, the law as written will not be analyzed by an Indiana Court through the same rubrick that the federal legislation goes through. Indiana arguably puts greater emphasis on religious freedom and clearly offers no civil or human rights protections based on sexual orientation.

This is the exact opposite of the federal level, where protections based on sexual orientation have at least come up enough to demonstrate it as a “compelling” government interest.

Therefore, the difference, if not in how they are written, is that the federal government has shown such protections to be a government interest whereas Indiana has not (i.e. how they are applied). So, let’s dispense with pretending that similarities in how the laws are drafted would equate to them being applied the same way.

What is the potential longview here?

I have stated and still believe that this law is designed to cast a wide net in terms of those who might claim a religious objection and then carry out that objection through multiple levels of litigation. On top of that, Section 9 allows for such litigation to proceed without the inclusion of, for example, the City government if it was a human rights ordinance at issue.

As stated above, we should all be able agree that this is one of the few remaining grey areas of LGBT rights. It is unknown how litigation would play out. So, what happens if Indiana law says that one can make a religious objection based on the laws here as written? Would other states follow suit in their legislation or case law?

How can the law be clarfied?

There are valid reasons to have a procedrual safeguard contained in religious freedom acts. They indeed make it easier for Courts to decide issues of laws in conflict with religious principles. So, the law will always be there. That does not mean it cannot or should not be amended.

The catch in these statutes is whether they can explicitly serve as defenses in civil rights claims or they provide safeguards against acts of discrimination within the claim. It is unknown if the legilslature will respond to the public outcry by so amending the statute.

Addendum No. 1: here is a recent story I had to the good fortune of commenting on for Indianapolis ABC.

Addendum No. 2: I have been asked whether INRFRA could justify the committing of a crime. That’s a two-part answer. Under the current version of the law, you could use the act to assert a “religion” defense. After that, your defense will be shot down fairly easily. There has to be a “compelling government interest” in the challenged law. Typically speaking, laws against crime all reflect a valid and compelling government interest. You can’t cut your neighborhood’s power on Shabbos and you can’t drink and drive by overconsuming the blood of Christ.

The Indiana Religious Freedom Restoration Act – An Analysis of Its Controversy

I have a posted a follow-up in order to address some, but not all, questions I have received over the past few days.

Also, here is a recent story from ABC Indianapolis regarding these points.

I will preface this post by saying that I am not a supporter of the Indiana Religious Freedom Restoration Act (IRFRA), a/k/a Ind. Code § 34-13-9, et seq. As this post goes on, those reasons will become self-evident but it is mostly because it is so vague and just a poorly written law. However, more than anything, there is a shocking lack of actual analysis of this statute and several arguments are being thrown out there which are rather unfounded. As an Indiana citizen and lawyer, I will do my best to provide insight as to what this bill purports to do and why it has drawn the ire of so many both within and without the borders of this state. So, I invite you, the reader, to take the time to go through this bill and decide for yourself, without prejudice, what you think of this newest piece of legislation (the full text of the law is below beside the titular parallel federal legislation.

Does IRFRA resemble its federal counterpart?

The short answer here is no.

I have seen the point made that federal democrats in 1993 passed a similar bill into law. This is in reference to 42 U.S.C. § 2000bb, which was indeed passed during the Clinton administration. This sound-byte is apparently made to imply that the left cannot complain because they created the blueprint.

Indeed, as Gov. Pence provided in his statement yesterday: “Fortunately, in the 1990s Congress passed, and President Clinton signed, the Religious Freedom Restoration Act—limiting government action that would infringe upon religion to only those that did not substantially burden free exercise of religion absent a compelling state interest and in the least restrictive means.” See Gov. Mike Pence signs ‘religious freedom’ bill in private.

The flaw in this implication is that it is misleading for several reasons. The federal act was deemed inapplicable to state actions. Consequently, several states have copied the federal act or have adopted similar legislation. A fair collection of all religious freedom statutes and court decisions can be found here. (Hats off to Liberty Counsel for making the effort to compile this list and publish it.) Upon my quick scan, Indiana’s version of the bill most resembles a similar law passed in Texas in 1999 but even that bill contains significant limitations that Indiana’s does not.

What is clear is that Indiana has not copied the federal legislation or those passed by other states, but has instead added more expansive language as seen below. The IRFRA adds several clauses which rightly give pause to the endless possibilities of using religion and religious freedom as a sword and a shield.

What are the controversial provisions and why?

Let’s start with Section 5, which reads: “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” (Emphasis added.)

First, note the lack of any restrictive language in this paragraph. The word “includes” is deliberately used in place of “means.” The latter would at least limit “any exercise of religion” to the predicate definition. “Includes” just means that this is but one example of exercising religion. (Here the law goes beyond its most similar counterparts in Texas and New Mexico which use “means”.) While this language indeed mirrors the federal legislation, proponents of the IRFRA have submitted that Indiana’s constitution protects religious freedom to greater extent than federal law.  Second, religion is not defined. So, “any exercise of religion” is subject to a fairly broad interpretation. Third, any action which may fall under the “exercise of religion” may or not be “compelled by, or central to, a system of religious belief.” In other words, even if the belief is at the fringe of what a religion may or may not hold true, it falls under this definition of exercising one’s religion.

Section 7 then reads:

As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

(Emphasis added.) The potential danger in this aspect of the statute is that it may become self-fulfilling. For example, as has been cited before, say a hotel corporation with a religious owner refuses service to an individual based upon his religious beliefs. Now, even if that person had not previously exercised such practices, this Act, which requires no more than two religious practices that fall into this category, would allow a corporation to begin a discriminatory practice in the name of free exercise (and remember now how broadly exercising religion is defined?).

This inevitably leads the reader to Section 9, which reads:

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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

(Emphasis added.)

In other words, you can defend yourself in a criminal or civil action on the very broad basis of “any exercise of religion.” Where this may apply the most would be a Court’s ability or inability to apply a human rights ordinance against someone with a religious objection. (That we can even have an exercise in religion running directly against a human rights ordinance is cause alone for concern.) Such ordinances typically prohibit the discrimination employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity. The cities and counties in Indiana with these ordinances in effect are the City of Bloomington, the City of Evansville, the City of Indianapolis, Marion County, Monroe County, and the City of South Bend.

What makes this law new and different is its application to disputes between private citizens. That is not to say that such laws could not be used in private matters (in fact, Alabama, Connecticut, Florida, Idaho, New Mexico, Oklahoma, South Carolina, and Texas all have similar prvisions). Indiana’s version of the law, though, goes the extra mile to ensure the matter could remain between private individuals. It is the only one I have seen where the State can explicitly intervene at its discretion.

The timing factor.

Perhaps the most frustrating aspect of this law to its opponents is that it comes right after Indiana’s very public and very unsuccesful bid to ban gay marriage. Our own attorney general went state to state submitting amicus briefs in support of laws that would prevent state-sanctioned gay marriage. The state’s arguments at the 7th Circuit were nearly laughed out of the courtroom and were called out for what they were: discrimination based on personal views. The proponents of the IRFRA seem to gloss over this aspect even though the proponents of this bill were the same who had tried to ban gay marriage through Indiana’s Constitution. The exasperation could probably summed up as: “Look, if you hate the LGBT community, so be it . . . but don’t act like this law has nothing to do with it.”

What to make of it all?

As usual, it seems the truth lies somewhere in the middle.

Those against the bill may cite that 1) it may be applied more broadly than any of its predecessors at the state and federal level; 2) if properly based on religious grounds, it will override human rights ordinances that had protected LGBT rights; and 3) it coincidentally comes on the heals of Indiana’s effort to combat gay marriage.

Those in favor of the bill may argue that its predecessors, particularly those found in Texas and New Mexico have been around, constitutionally applied, and that the ire felt by the State is mere propaganda in light of the fact that these laws have been in existence elsewhere for some time. The principal legal argument in favor the law can be found here.

The law itself though tests the limits that previous versions have not. While it may be constitutional, it certainly is trying to push the envelope on the reach of free exercise of religion.

Addendum: Re-reviewing Section 9.

In light of some comments both received by email and online, it has been brought to my attention that Section 9 of IRFRA, was written so as to allow for the application of the law in a lawsuit without the intervention of the government agency who drafted the legislation or ordinance whose application would be limited by IRFRA. Some may be wondering why does this matter.

To begin, New Mexico’s version of Section 9 largely resembles those found in the other states that have a similar provision allowing for their respective religious freedom legislations to be applied as a defense in a judicial or administrative proceeding. “A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government agency . . .” NM ST § 28-22-1-4. The decision in Elane Photography, LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 757 (2014) stated that the government was a necessary party in order to be exempt from the law the religious freedom act. This rationale would likely apply to similarly drafted acts in the other states mentioned above.

As has been graciously pointed out to me, Section 9 as written in the IRFRA obviates the requirement that the government be a party to a proceeding.

By way of background, typically a challenge in the application of law is done by requesting declaratory relief at the state or federal level asking the court to clarify how and should to apply a certain law, given that the person making the request has standing (i.e. is affected by the law) to do so. Thus, the government agency may respond and take a position to articulate how its law should be applied. In the same vein, the government can defend the constitutionality of the law if that is raised in the lawsuit as well. The overall point is that the government who drafted the affected law has an opportunity to come in a defend its application.

This matters because Section 9 would allow a challenge to a law or ordinance between two parties without making the government a necessary party. To use a contemporary hypothetical, if a South Bend patron sued a hotel  for discriminatory treatment under South Bend’s human rights ordinance and the hotel claimed as a defense that it was asserting its religious right to refuse service to that patron, that lawsuit would typically and necessarily involve the City of South Bend as a party so it could advocate for or against the application of IRFRA to its local ordinance. And while a Court could not prevent the City from intervening in the case, my opinion is that the legislation would bypass the need to have South Bend in such a case to defend the application of its own ordinance.

This is but another way in how IRFRA is more broadly written than its federal and state predecessors. While I would agree with the notion that its not an outright license to discriminate in and of itself (a court ruling would have to decide that), it does allow the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate against those protected in Indiana by human rights ordinances.

Indiana version

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.Sec. 3. (a) The following definitions apply throughout this section:(1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion.(2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

(b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause.

(c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following:

(1) State government.

(2) A political subdivision (as defined in IC 36-1-2-13).

(3) An instrumentality of a governmental entity described in

subdivision (1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, “person” includes the following:

(1) An individual.

(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:

(A) may sue and be sued; and

(B) exercises practices that are compelled or limited by a

system of religious belief held by:

(i) an individual; or

(ii) the individuals;

who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

(b) 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.

Sec. 9. 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that:

(1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and

(2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person:

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest;

the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity.

(b) Relief against the governmental entity may include any of the following:

(1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter.

(2) Compensatory damages.

(c) In the appropriate case, the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

Federal Law

Sec. 1(a) In generalGovernment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.(b) ExceptionGovernment may substantially burden a person’s exercise of religion only 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.

(c) Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

Sec. 2

As used in this chapter–

(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity;

(2) the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

(3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and

(4) the term “exercise of religion” means religious exercise, as defined in section 2000cc-5 of this title.

Sec. 3

(a) In general

This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.

(b) Rule of construction

Federal statutory law adopted after November 16, 1993 is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

(c) Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

Sec. 4

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

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