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.