The Religious Freedom Restoration Act

April 26th, 2015

A significant backlash

On March 26, Governor Mike Pence of Indiana signed into law Senate Bill 101, a Religious Freedom Restoration Act (RFRA). “With the passage of this legislation,” he wrote in a Wall Street Journal editorial, “Indiana will continue to be a place that respects the beliefs of every person in our state.”

The right to exercise one’s religion freely is enshrined in the Constitution’s First Amendment. A state law reaffirming that principle might seem uncontroversial, but Indiana’s RFRA provoked significant backlash. The CEOs of such major corporations as Angie’s List, Apple, Eli Lilly and Yelp expressed opposition. The NCAA, on the eve of college basketball’s Final Four championship in Indianapolis, announced it would “closely examine the implications of this bill” when considering holding future events in the state. GenCon, a video game convention that attracts tens of thousands of visitors to Indiana and generates over $50 million annually, threatened to seek another venue. Some local business owners put stickers on their doors and windows indicating displeasure with the law. “Was I expecting this kind of backlash?” asked Pence at a press conference. “Heavens no.”

Why the outcry? While the law’s supporters see it as a necessary protection against government intrusion into religious practice, its opponents see it as a license to discriminate — particularly against people who are lesbian, gay, bisexual and transgender (LGBT) — in the name of religion.

Reading Indiana’s RFRA

Indiana’s RFRA states that government “may not substantially burden a person’s exercise of religion ... any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” unless it can demonstrate that the burden advances “a compelling governmental interest” and is the “least restrictive” way to advance that interest. The law grants any “person” — defined as an individual, a church or other religious organization, or a corporation — legal standing to sue for redress when burdened or potentially burdened. Scott Bomboy of the National Constitution Center summarizes the law’s reasoning: “Government has to show a very strong state concern if a law forces someone to do something against their religious beliefs.”

Indiana’s law resembles the federal RFRA signed by President Bill Clinton in 1993, as do similar laws in other states. But it is broader in two ways. First, it includes for-profit businesses among “persons” possessing a right to exercise religion. According to constitutional law professor Garrett Epps, “The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.”

Second, Indiana’s RFRA, unlike any other except Texas’s, allows persons to make a claim or defense of religious freedom in court “regardless of whether the state or any other governmental entity is a party to the proceeding.” “In other words,” writes South Texas College of Law professor Josh Blackman, “the law provides a defense against a private discrimination suit. ... Does the federal RFRA also provide a defense? It depends on what Circuit you’re in.” (Federal courts are split on that question.)

License to discriminate?

In an official statement, Governor Pence wrote that “many people of faith feel their religious liberty is under attack by government action.” As an example, he cited insurance coverage provisions of the Affordable Care Act that the University of Notre Dame challenged as violations of its religious convictions. (These provisions, not specified in Pence’s statement, include requirements that employers provide employees with certain contraceptives.) Pence also mentioned last year’s Supreme Court decision in Burwell v. Hobby Lobby, pointing out that the federal RFRA by which the Court “upheld religious liberty ... does not apply to individual states or local government.” The stated intent of Indiana’s RFRA was to afford similar protection at those levels.

The law’s opponents, however, claim that it could legally protect discriminatory practices. “This law makes me feel like I’m being bullied all over again,” one man told CNN. “If I go into a restaurant and the owner doesn’t like me because I’m transgender, because their religion has told them that I’m bad, does that give them the right to refuse to serve me?”

Recent years have seen such incidents. In 2010, a cookie shop at Indianapolis’ City Market refused to fill a gay student group’s order for rainbow-iced cookies. In 2013, an Indianapolis bakery refused to make a cake for a gay couple’s wedding. Critics of Indiana’s RFRA say the law will make such incidents more common because it will let business owners invoke personal religious objections to homosexuality as reasons to deny service to LGBT consumers.

Some advocacy groups supporting the law did make such arguments for its passage. For example, Advance America told members on its blog, “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage! A Christian business should not be punished for refusing to allow a man to use the women’s restroom! A church should not be punished because they refuse to let the church be used for a homosexual wedding!” After the RFRA became law, the co-owner of a pizzeria in Walkerton, Indiana, told reporters that while the restaurant would serve anyone, “if a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no” for religious reasons. 

The law’s timing also concerns some observers. Matthew Anderson, a South Bend, Indiana, attorney, notes this law “comes right after Indiana’s very public and very unsuccessful bid to ban gay marriage.” According to The Indianapolis Star, the RFRA was “widely expected” as a response to last June’s decision by a federal judge that the ban was unconstitutional.

Pence says the new law was not designed to encourage discrimination. “RFRA only provides a mechanism to address claims [of a burden],” he wrote in The Wall Street Journal, “not a license for private parties to deny services.” It does not grant automatic immunity but “only allows a defendant to raise a defense,” explains Blackman, “which a finder of fact must consider.”

Some legal experts doubt the law would lead to more discrimination. Indiana University law professor Daniel O. Conkle supports same-sex marriage rights and also supports the RFRA. He says its “compelling interest” test is the same standard that led the US Supreme Court to rule that a Muslim prisoner could wear a half-inch beard required by his religion, and it is the same standard that led a Pennsylvania court to protect some Philadelphia churches from a city ban on feeding homeless people in public parks as an expression of their faith. Courts “generally have ruled that the government has a compelling interest in preventing discrimination and that this interest precludes the recognition of religious exceptions,” writes Conkle. “Even in the narrow setting of wedding-service providers, claims for religious exemptions recently have been rejected ... including [in] states that have adopted the RFRA test. A court could rule otherwise ... But to date, none has.”

“We serve everyone”

On April 2, Pence signed a legislative “fix” to Indiana’s RFRA. The law now states that it does not authorize providers to refuse services because of customers’ sexual orientation and gender identity, among other factors. It also explicitly exempts churches and nonprofit religious organizations and their personnel.

These changes do not address the fact that Indiana, like most states, has no statewide LGBT civil rights protections in place. (Only 19 states and the District of Columbia have laws banning sexual orientation-based discrimination in employment and housing.) Many people in Indiana’s LGBT population felt at risk even before the new law. A press release from the Lambda Legal civil rights organization states that “gay and transgender people in much of Indiana are terribly vulnerable to arbitrary discrimination by businesses, refusal of housing, and being fired just for being who they are. ... That unacceptable situation requires a full solution.”

Until that solution comes, many Indiana businesses are displaying stickers that declare, “We serve everyone.” Some churches, too, are spreading the sticker’s message of welcome and inclusion, because they see it as Jesus’ message. The Reverend Darren Cushman Wood of North United Methodist Church in Indianapolis calls the RFRA “contrary to the example of hospitality and humility we see in Jesus ... RFRA seeks to limit who will be served, but Jesus served everyone.” 

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