Tuesday, June 30, 2015

Standing in the School House Doors (2015 Same-Sex Marriage Edition)

Do you recognize this picture?

George Wallace stands in Alabama school hosue door

This is a 1963 photo of Alabama Gov. George Wallace, standing in a school house door in order to live up to his campaign slogan of “segregation now, segregation tomorrow, segregation forever”. What was going on? A federal judge had ordered the integration of the University of Alabama, and Gov. Wallace refused to allow African American students to enter the school. Here is another photo of Gov. Wallace which seems appropriate given the events of the last ten days or so:

George Wallace & Confederate flag

Today, in 2015, in southern states, government officials, much like George Wallace in 1963, are claiming a right to refuse to honor the order of a federal court. In 1963, the court was a federal district court and the issue was racial segregation. In 2015, the court is the Supreme Court of the United States and the issue is same-sex marriage and the Equal Protection clause of the 14th Amendment. In both cases, we have elected state officials who argue that they don’t have to recognize or follow federal court rulings or who are advocating a form of civil disobedience by government officials.

It seems almost inconceivable that more than 50 years after Gov. Wallace defied a federal court until the National Guard forced him to move aside, state officials in Texas and, once again, Alabama, are refusing to honor the ruling of federal courts. Yet this is the heritage of hate. It is heritage of hate that once (and perhaps still) targeted African Americans and which now takes aim at the LGBT community. It is a hate that uses religion (well, the portions of religion that support the hate) as an explanation and the cry of “state’s rights!” as the legal framework. It is a heritage of hate that believes that “religious liberty” is a weapon to be used to against minorities. And in 2015, it is a heritage of hate that is being used against those who want to express love.

(Time is short at the moment, so I’m not going to do a deep dive on the issues that this post raises. Depending on how events transpire, I may return to these issues when I get back from vacation. In the meantime, please read my post “Marriage Licenses and Adoptions: The Newest Targets of Religious Freedom Laws” (published two weeks ago) in which I discuss North Carolina’s new law that purports to allow state officials to refuse to perform marriages on the basis of the official’s religious objections, just as the Texas Attorney General now claims that state officials can ignore the Supreme Court’s ruling on religious grounds.)

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Thursday, June 18, 2015

A Few Initial Thoughts Following the Tragic South Carolina Church Massacre

It’s too early to say much about the tragic shooting at a church in South Carolina last night. We’ve seen, all too often, that the earliest news about these sorts of events is wrong in some or many details. So I don’t want to dive deeply into motivations, revisit my previous discussions about gun control, or talk generally about the state of race relations in America. But I do want to make a few very brief observations.

First, the subject was captured. Alive. Perhaps it’s merely coincidence; perhaps there are far more variables involved… But I find it interesting that Dylann Roof was captured alive, just like James Holmes (the Aurura Colorado theater shooter), F. Glenn Miller, Jr. (the neo-Nazi who shot three people at a Kansas City Jewish community center), Eric Frein (the man who hid in the woods to assassinate police officers in Pennsylvania), Jared Lee Loughner (the Tucson shooter who wounded Congresswoman Giffords and killed 6 others), Ryan Elliot Giroux (the white supremacist skinhead who killed several people in Arizona earlier this year), and others. Each of those people was (I believe) armed when apprehended. Now, compare that to the repeated stories that we’ve seen recently of unarmed African Americans, often teens (or younger), who are killed by police, sometimes for a minor infraction, other times after committing no crime at all. It’s just one of those things that makes you say, “Hmm.”

Second, if a shooting like the one in South Carolina took place in Iraq and the shooter was a Sunni and his targets were a group of Shiites, we’d have no trouble calling the shooter a terrorist. If the shooter was a Muslim and his target was any group of Americans, we’d have no trouble calling the shooter a terrorist (especially if those Americans were in a church praying). But when the shooter is a white man, the kneejerk reaction is to say that he was “troubled” or suffered from mental illness. That may be true; he may have been mentally ill. But if, as early reports indicate, he expressed his desire to kill African Americans simply because they were African Americans, then isn’t that the exact sort of conduct that we would classify as terrorist if the shooter wasn’t a white, Christian American?

Finally, when I heard members of South Carolina’s government speaking about the shooting this morning, it made me wonder whether South Carolina would lower to half staff the Confederate battle flag that flies in front of the State Capital.

I mean, it’s not like the Confederate battle flag could ever be thought of as a sign of racial division or prejudice, right? And I’m sure that those who support flying a Confederate battle flag would think it appropriate to lower the flag to half staff to commemorate African Americans who were killed in a church that was once burned down by those who supported slavery and which later served as a stop on the underground railroad. Am I right?

Updated June 26 to correct typos.

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Wednesday, June 17, 2015

Marriage Licenses and Adoptions: The Newest Targets of Religious Freedom Laws

As a sort of follow up to my recent posts on the Indiana Religious Freedom Restoration Act, I want to take a brief look at the two newest “religious freedom” laws that have been passed, this time in North Carolina and Michigan.

First, let’s look at North Carolina’s law (which Republicans passed and then overrode the Governor’s veto, in part by scheduling the vote at a day and time when many opponents of the bill were going to be absent from the statehouse). Senate Bill 2 amends the provisions of North Carolina’s General Statutes to permit government officials to refuse to do their jobs on the basis of their religious belief. With the enactment of the new law, magistrates (I don’t know if they are appointed or elected) can refuse to solemnize a marriage on the basis of the magistrate’s sincerely held religious objection. Similarly, the register of deeds (who, apparently is responsible for issuing marriage licenses), can refuse to issue a marriage license on the basis of the register’s sincerely held religious objection. Here is the key point: The parts of the statute that authorize these refusals both talk about lawful marriages. In other words, even though the marriage is lawful, the government official can refuse to issue the license or solemnize the marriage.

Just think about that for a minute.

It’s worth noting that the statute doesn’t distinguish between heterosexual or homosexual marriages at all. It only talks about lawful marriages. Thus, under the new North Carolina law, a magistrate who doesn’t think that blacks and whites should be allowed to marry each other, who doesn’t think that Jews and Christians should be allowed to marry each other, who doesn’t think that divorced people should be allowed to remarry, or who doesn’t think that atheists should be able to marry at all, can refuse to solemnize the marriage by simply citing a sincere religious objection.

Do we really want state officials to be able to bring their own religious views into the performance of their duties? If you don’t want to perform lawful marriages for all people, then don’t become a magistrate!

Consider this: As far as I can tell, at least until passage of this new law, North Carolina did not permit a magistrate to refuse to marry a couple when one of the people was, say, a convicted sex offender and the other was the parent of a small child. A register of deeds who saw bruises on a woman’s face couldn’t (I don’t think), say, “Gee, I don’t think that this marriage is a good idea because he beats you.” Ah, but gays? Well, now that is something for which the magistrate or register of deeds should be able to use some independent (religious) judgment, right?

And what will be next? Will the register of deeds be permitted not to record a deed that would allow a black family to move into a white neighborhood? Will a judge be permitted to refuse to issue a divorce decree because his religion prohibits divorce? Will the fire department be permitted to let a mosque burn down because of Islamophobia?

Now, it’s important to note that the North Carolina law does have some important restrictions. First, if a magistrate or register of deeds wants to refuse to solemnize a marriage or issue a license, the official must give a written notice to the local judge and, once the notice is given, that official won’t be able to solemnize any marriages or issue any marriage licenses for six months. And the law includes a provision requiring that another official (through a potentially convoluted process) be made available to solemnize the marriage or issue the license. So this law won’t actually prevent people from getting a marriage license or actually getting married.

But it seems to me that our government — including (or especially) government officials — should be neutral toward religion and toward those who don’t share the prevailing religious view (or the religious view of the official) and should treat all citizens who come before them equally. The religious views of a government official shouldn’t determine the rights (or the ease of exercising rights) available to citizens. Neither the United States nor North Carolina are theocracies where the majority religion is able to dictate to minority religions or where those government officials are able to impose their religious views to prevent or hinder otherwise legal conduct.

On to Michigan…

So which is more important: The welfare of an orphaned child or the religious beliefs of those who care for orphaned children? I hope you answered the former. Unfortunately, Michigan’s Republican legislators apparently chose the caretakers over the children. Public Act 53 (which was signed by the Governor) permits private adoption agencies which are funded by the State of Michigan to refuse to place a child with a prospective adoptive family on the basis of the religious beliefs of the adoption agency.

Trying to balance the needs of children with the religious “needs” of organizations seems like an easy call to me. Even the Michigan legislature recognizes the importance of placing children with loving families:

When it is necessary for a child in this state to be placed with an adoptive or foster family, placing the child in a safe, loving, and supportive home is a paramount goal of this state.

Section 14e(1)(a). Yet, just a few sentences later, the Michigan legislature states

To the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency.

Section 14e(2).

Once again, forget about potential adoptions by same-sex families. Consider, instead, a child placed with a Catholic agency that refuses, on the basis of its religious views, to permit children in its care to be adopted by anyone who isn’t Catholic (even, I suppose, if the child isn’t Catholic). Could that adoption agency refuse to allow the child to be adopted by a woman who had previously been divorced? Or imagine an adoption agency that uses “religion” as a reason not to place white children into black homes (or vice versa). Might a religious adoption agency refuse an adoption to an otherwise qualified couple if that couple refuses to commit to raising the child in a certain religion or to making sure the child attends church each Sunday? Might a Jewish adoption agency refuse an adoption to an otherwise qualified couple if that couple refuses to have a kosher home or to commit to never allowing the child to eat pork or shrimp?

In other words, even though “placing the child in a safe, loving, and supportive home is a paramount goal of this state”, that paramount goal is subordinate to the religious views of adoption agencies.

Michigan really wants to find loving homes for its orphaned children … just so long as the loving homes don’t make some people say “ick!” on the basis of their religious views. And, as I keep noting in these “religious freedom” posts, why should that hypothetical Catholic adoption agency be able to refuse to allow an otherwise qualified same-sex couple adopt a child on the basis of the agency’s religious beliefs if the agency permits adoptions by previously divorced couples or couples who violate other tenets of the agency’s beliefs? Shouldn’t there be a requirement of consistency as opposed to simply deciding that certain groups of prospective parents are out-of-bounds? For my part, I’d really like to hear religious leaders explain why it is better for a child’s welfare to remain in an orphanage or foster care than be placed with a loving family; why the church’s “beliefs” are to be given more weight than the life of the child.

I will note that this law does include a requirement that the agency that refuses the adoption must inform the prospective parents of other agencies from which an adoption might be available. Let’s just hope, for the sake of Michigan’s orphaned children, that those other agencies don’t also decide to refuse adoptions on religious grounds.

The more I look at these sorts of laws, or Indiana’s Religious Freedom Restoration Act, the more they look like the temper tantrum of a petulant child who isn’t getting his way. Oh, perhaps a better way to look at these laws would be to recognize them as a last ditch effort by those who are desperately afraid of change and have an abject fear of those who are different (or think differently). More and more, the proponents of these sorts of laws begin to look like those who used religion as a basis to continue slavery, as a reason to keep women from voting, as a reason to try to keep African Americans from voting, and as a religion to prohibit interracial marriages.

We didn’t let “religious freedom” stop progress or equality then; we shouldn’t allow “religious freedom” stop progress or equality now.

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Friday, June 5, 2015

RFRA: Some History, Some Analysis, Some Thoughts

So religious freedom has been restored in Indiana! Hallelujah, right? Sorry, but you won’t be hearing exaltations of joy from me. I think that Indiana’s newly enacted “Religious Freedom Restoration Act” (RFRA) is a poorly conceived approach to a real problem that has been turned on its head. It is a tremendous step backward for those who view equality and tolerance as important or who properly understand religious freedom as being about an individual's ability to actively practice his or her own belief rather than use those beliefs as a sword against others. Moreover, while I do believe that the primary motivations for passage of RFRA were the failure of conservatives to pass the same-sex marriage discrimination amendment last year and the rulings of the federal courts that legalized same-sex marriage in Indiana, I think that we make a mistake to presume that RFRA was solely about gays; thus the so-called “fix” doesn’t address many of the other problems that RFRA creates.

This is going to be a long post. Really long. I’m warning you here at the beginning. But there is a lot of ground to cover, a lot of issues to address, a lot of points to make, and a lot of misinformation to debunk. I’m going to do my best to do all of this in as ordered and neat of a post as I can reasonably manage. But I also know that time is pressing, and so I may not have the luxury to dot every i and cross every t as I work through this discussion. Finally, just to keep things clear, I started writing this post on Tuesday, March 31, 2015, but I expect that it will take a day or five weeks (months?) to finish. So please pardon me, if some of the points that I articulate are made elsewhere (or better) in the meantime. And off we go…

The History of RFRA

I think that it’s important to understand the history of the federal RFRA law which was passed unanimously by the House and nearly unanimously by the Senate in 1993. It’s important to understand this history both as a comparison to the motivations for passage of Indiana’s RFRA and to recognize the differences in the two pieces of legislation, especially given that supporters of Indiana’s RFRA statute constantly point the “identical” federal law.

The federal RFRA law was enacted largely in response to a series of court decisions involving Native Americans. The most important of these cases was decided by the Supreme Court of the United States (SCOTUS) in 1990. In that case, SCOTUS upheld the denial of unemployment benefits to two Native American men who were fired after testing positive for drug use because they had been smoking peyote as a part of a religious ceremony. In response, Congress passed RFRA as a means of permitting individuals aggrieved by actions of the government, a form of redress. In essence, following passage of RFRA, a law cannot impose a substantial burden on the exercise of religious practice unless the law serves a compelling governmental purpose and is the least restrictive means to address that purpose (pardon that last bit of legal jargon). In 1997, SCOTUS ruled that the federal RFRA didn’t apply to the states, so in response, many states adopted their own versions of RFRA. Indiana did not (and, no, I don’t know why Indiana didn’t).

Pause for a moment and think about the that case that gave rise to RFRA: Native Americans wanted to do things that were an essential part of their religion but drug laws meant that they couldn’t legally do so. This situation might be analogous to Catholic children being prohibited from sipping wine at communion or Jewish children being prohibited from sipping wine as a part of a Passover Seder or b’nai mitzvah celebration. In none of those situations does the action that the person seeks to engage in have a direct impact on others. And in those cases, the prohibited conduct is central to the practice of the religion or at least to a ceremony that is a part of religious exercise.

In the years following passage of RFRA, most of the cases dealing with RFRA involved either land disputes or laws that prohibited certain religious conduct. For example, the case in which SCOTUS held that RFRA did not apply to states involved a zoning dispute with a church. Another case involved use of federal lands for a ski resort. Other cases involved the use of income taxes to pay for war, the requirement to have a social security card (those complaining about the application of the law to their religious beliefs lost both of these cases), and the type of warning devices on the back of Amish buggies. And perhaps the best known series of cases — at least until Hobby Lobby — involved laws that prohibited practitioners of Santeria (often confused with voodoo) from engaging in ritual animal sacrifice.

Hobby Lobby and Same-Sex Marriage

But then two things happened almost concurrently: Hobby Lobby and same-sex marriage.

For those who don’t recall (and I’m not going to delve deeply in to it here…), the Hobby Lobby case involved the mandate in the Affordable Care Act (a/k/a Obamacare) that employer-provided health insurance cover birth control. Hobby Lobby, a close corporation (i.e., its shares are not publicly traded) objected on the grounds of religious freedom and the federal RFRA law, arguing that providing birth control in the form of abortofacients violated the religious beliefs of the owners of Hobby Lobby and, by extension, of the business itself. SCOTUS sided with Hobby Lobby and held that the company could not be required to provide coverage for abortofacients (or IUDs) for its employees. Two things are particularly notable about this decision: First, the recognition that a corporation might have “religious beliefs”, and second, that the substantial burden on Hobby Lobby’s religious exercise was requiring Hobby Lobby to spend money to do something it (well, actually its shareholders) found religiously objectionable (while the plaintiffs in the cases involving taxes and social security cards lost when they raised similar arguments).

Almost concurrent with the Hobby Lobby case were the growing number of decisions by state and federal courts overturning bans on same-sex marriage all across the country. In many states, conservatives tried to add language to state constitutions to ban same-sex marriage (or recognition of same-sex marriages from other states). These bans were usually the issue before the courts and most were ruled unconstitutional. Because of the slow manner of amending Indiana’s Constitution, Hoosier conservatives were still fighting this battle in the spring of 2014. It was a brutal, ugly, angry fight in the Statehouse (and yes, this blog still carries the logo of the group that led the efforts to defeat the passage of the measure to adopt the amendment). At the end of the day, those who were opposed to same-sex marriage and wanted to enshrine discrimination into the Constitution lost. And some of the fallout was … ugly.

Then, just a few months later, a federal court ruled that Indiana’s statutory ban on same-sex marriage was unconstitutional (under the United States Constitution). The Seventh Circuit Court of Appeals (in Chicago) upheld this ruling in a very sharply worded opinion (if you find this sort of thing at all interesting, and if you’re reading this post, then I presume that you do, then it is really worth your time to read that opinion, both to see the sorts of arguments advanced against same-sex marriage and to see one of the brightest conservative judges absolutely eviscerate those arguments). SCOTUS allowed this ruling to stand and same-sex marriage became legal in Indiana. Due to a split between federal circuit courts that arose after SCOTUS refused to hear the Indiana case, the issue is now before SCOTUS with a decision expected within weeks or even days.

Thus, at least in Indiana, the primary motivation for passage of RFRA seems, quite clearly, to be the loss in the same-sex marriage battle with the ammunition provided by the Hobby Lobby decision. For those who don’t see the linkage between the same-sex marriage debate and RFRA, all I can do is point to the following: (a) Indiana has had years to adopt a RFRA statute, but never did so, until same-sex marriage became the law; (b) the proponents of RFRA were the same legislators and lobbying groups who were proponents of the proposed amendment to prohibit same-sex marriage; (c) RFRA became the principal legislative effort in the session immediately following both the defeat of the marriage amendment and the decision permitting same-sex marriage; and (d) proponents of RFRA actually tried to adopt a smaller, more focused version in 2014, just days after the proposed marriage amendment was defeated.

The Baker, The Florist, and the Photographer

As the fights over same-sex marriage were heating up, three incidents caught the attention of those who felt that their views opposing same-sex marriage on religious grounds were being, at best, marginalized, or at worst, “attacked”. Those cases, broadly described, included a baker who didn’t want to bake a wedding cake for a same-sex wedding, a florist who didn’t want to provide flowers for a same-sex wedding, and a photographer who didn’t want to take photographs of a same-sex wedding (which is why you’ll see those examples used over and over again). The baker, florist, and photographer each argued that their religious beliefs didn’t condone the “gay lifestyle” or same-sex marriage and that by providing the requested service they would be “participating”, “celebrating”, or “promoting” something that violated their religious beliefs.

One thing to keep in mind in each of these cases (and I don’t want to get too far afield), is that the state or municipality in which the events occurred, all had a law or local ordinance that protected people from discrimination on the basis of sexual orientation. Some cities in Indiana have similar protections, but the State of Indiana does not. I want to make this as clear as possible: The baker, florist, and photographer were not punished for refusing to “participate” in a same-sex wedding; rather, they were punished for violating laws that prohibited discrimination against people on the basis of sexual orientation. The reason for the discrimination wasn’t being punished, just the act of discriminating in violation of the law. Go ahead. Take a few minutes and ruminate on that distinction. It’s important.

Before moving on, however, I do want you to think about the baker, florist, and photographer cases for another moment. First, let’s review what the issues were in those cases, but instead of “same-sex marriage”, I’m going to make some slight alterations to the fact patterns as I described them above. Tell me if you feel any different with these slight revisions:

Those cases, broadly described, included a baker who didn’t want to bake a wedding cake for an interracial wedding (because his religious beliefs inform him that the races are to be kept separate), a florist who didn’t want to provide flowers for the funeral of an atheist who hadn’t accepted Jesus as his personal savior before death), and a photographer who didn’t want to take photographs of a Muslim wedding because the bride would be behind a dark veil.

Now, let’s take these examples a step further:

Those cases, broadly described, included a baker who didn’t want to hire a divorced man because his religious views don’t condone divorce, a florist who fired a single woman who became pregnant because his religious views don’t condone pre-marital sex, and a photographer who fired an employee for refusing to convert to the photographer’s religion after repeated efforts to proselytize.

Or maybe the religious objection is to women working outside of the home or being in public without a veil. Maybe the objection is to the man cutting his hair or not having a beard as required in Deuteronomy. Perhaps the concern is the employee using her salary to purchase birth control, a pork tenderloin, or alcohol, all in violation of the employer’s religious beliefs. You can extend, almost infinitely, the list of things to which a religious objection could be raised. So what it is about same-sex marriage that stands apart from these other examples? And before you chime in with an answer, let me remind you that religious beliefs were used as justification both for slavery and, later, segregation; many of the same arguments that we’ve heard against same-sex marriage are the exact same arguments that were used to justify laws banning mixed-race marriages (which were only legalized in many states following a ruling from SCOTUS in the 1960s). I raise these points so that when considering RFRA you can think both in terms of its applicability to same-sex marriages and to other sorts of discrimination on the basis of religious belief. In fact, perhaps when thinking about these issues, you’d be well-served to replace “gay” or “homosexual” or “same-sex” with words like “African-American” or “Jewish” or “interracial”. Then see if your opinion changes at all.

Churches Aren’t Being Forced to Conduct Same-Sex Marriages

One other case that I want to comment upon (because it got a fair amount of press … briefly) involved a wedding chapel that refused to host same-sex marriages. The story that went around was that a “church” was being forced to perform same-sex marriages. Actually, the chapel was a for-profit business, not a church. It’s owners had been “ordained” but not by any particular faith; rather their ordination was what was necessary to allow them to perform marriages. And the owners themselves weren’t being required to perform marriages at all, only to allow their chapel to be rented out for a wedding with the couples supplying their own clergy, just as the chapel was rented to others who also supplied their own clergy. In other words, this case would be better thought of as a private banquet facility that wanted to turn away an event, not a church being forced to perform a marriage that it didn’t condone. And again, would you view that case differently if the chapel’s owners were turning away a couple because they were of different races or Jewish, Muslim, or atheist? Oh, and guess what? The owners of the wedding chapel created a new corporate organization to operate the chapel on religious grounds and the government then concluded that the exemption for religious organizations applied so no further actions were taken. In other words, a church was never being forced to conduct same-sex weddings; rather a secular, for-profit business was told that it had to comply with the law … so the business changed into a religious organization in order to avoid having to treat people equally.

This seems like a good point to briefly address one of the red herrings frequently tossed out by those who oppose same-sex marriage (and who, just coincidentally, happen to be the primary supporters of laws like Indiana’s RFRA). In fact, I’ll put the argument in the precise words of Advance America, in their message to supporters that Indiana’s RFRA law was “under attack” (emphasis in original):

Pastors should not be forced by the government to conduct a homosexual wedding at the church.

Similarly, in their efforts to get supporters to contact legislators to support passage of RFRA, Advance America claimed that the bill was necessary because:

A church should not be punished because they refuse to let the church be used for a homosexual wedding!

And just to be clear, Advance America has also told its supporters that pastors could be jailed for “preaching what the Bible says about homosexuality”. Similarly, the open letter from the Indiana Pastors Alliance that I blogged about last month, also makes this argument (“it’s only a matter of time before these same liberties are removed from the Church”). And Presidential contender (and professional buffoon) Mike Huckabee even argues that the goal of gay advocates is to eliminate Christian churches.


Perhaps those making this argument should take a few seconds to read Article 1, Section 4 of the Indiana Constitution to see that they are already protected (emphasis added):

No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

In other words, the Indiana Constitution already protects clergy from performing a ministerial service that he or she doesn’t want to; a church cannot be compelled to recognize marriages that it doesn’t want to. Those are core, fundamental elements of the Indiana Constitution (and the United States Constitution, as well), but why tell people the truth when appealing to people’s base fears and prejudices is so much scarier?

It seems to me that those who argue that churches could be compelled to perform gay marriages are wildly overplaying their hand; however, given that this argument has gained traction and is so-often repeated, then perhaps not. In any event, the fact that people actually believe this line of bullshit is, frankly, scary. I mean, think about it: Is forcing a church to conduct a same-sex wedding any different than forcing a Catholic priest to perform a Jewish wedding or forcing a Jewish rabbi to perform an interreligious wedding? And yet we don’t see those sorts of occurrences, do we? Of course not. Nor do we hear people voicing fears that their church or clergy would be so compelled. Similarly, there are some pretty awful things said on all sorts of subjects from pulpits all across the country, whether it’s a rant against African Americans, denigration of Muslims, hatred of “white oppressors”, allegations of deicide against Jews, or prayers for the assassination of President Obama, to give but a few examples. Yet we haven’t seen the clergy making those sorts of statements imprisoned, have we? It’s only the “fear” of a homosexuality, in general, and same-sex weddings, in particular, that sets off alarm bells of fear of imprisonment for advocating a dissenting opinion. And apparently, many people are so afraid of gays that they believe this sort of fear mongering.

So What Does the RFRA Statute Actually Say?

One of the first and most important things to do when discussing a law, especially a controversial one about which all sorts of misinformation is being disseminated, is to actually read the law (link to a .pdf of the version of RFRA that was initially passed by the General Assembly and signed by Gov. Pence [i.e., before the “fix”]). I elected not to reprint the entire statute here as this post will already be long enough. But please, please take some time to read the statute. Seriously, go read the statute; it’s only (really) 3 pages long with huge margins. Go on. I’ll wait.

Done? Ok, good. (Yeah, I know… you didn’t really go read it, but we’ll pretend that you did.) So let’s talk about what the statute really says. What jumped out at you? Anything? I’ll wager that some of you are saying, “A-ha! I knew the law didn’t say that it was OK to discriminate against gays; it doesn’t even mention gays! Or discrimination!” Well, you’re right. It doesn’t. What? You thought that the statute would say something like “Discrimination against gays who have icky gay sex is A-OK in the Great State of Indiana?” Sorry to disappoint. I think you’ll find it rare for statutes to be that specific, especially if one of the goals of word choice might be to hide or bury certain intent.

So let’s just walk through the statute, section by section, shall we?

Section 1 just tells us what this new RFRA statute applies to: Essentially any law whether passed before or after RFRA becomes effective.

Section 2 is one of those innocuous-seeming, legal mumbo jumbo-y paragraphs that actually caused a fair amount of the consternation. Look at Section 2 again. It provides that no existing law, whether a state law or a local ordinance, is exempt from RFRA unless a state statute specifically creates such an exemption. In other words, no statutes now on the books or passed in the future are exempt from RFRA unless the Indiana General Assembly passes a specific statement (either with a new law or in reference to an existing one) that says something like “this law is exempt from RFRA”. Why does this matter? First, obviously no laws adopted prior to RFRA would already include an exemption. Why would they? There wasn’t a RFRA law to be exempt from. But more importantly, what Section 2 really means is that local human rights ordinances (as an example), which may be broader than the state civil rights laws, are not exempt from RFRA. In other words, even though some cities and counties have added sexual orientation or gender identity to the list of protected classes within those cities and counties, the application of those ordinances are not exempt from RFRA. Or, to say it yet another way, RFRA trumps those local ordinances. (Oh, and for the lawyers out there, the phrasing “may not be construed to be exempt” is an interesting way of telling a judge who may be faced with a case arising out of RFRA how to examine and interpret the interaction between local ordinances and RFRA.)

Sections 3 through 7 are a series of definitions so that, when interpreting RFRA, we are all operating from the same understanding (if only things were that simple). I’m not going to address every definition; some are fairly mundane. I’ll limit my discussion to the most important definitions, though I do think it’s worth noting the lack of specificity used in the definition of “Establishment Clause” when referring to the Indiana Constitution. The definition specifically references the First Amendment to the United States Constitution (from which the term “Establishment Clause” is derived) before an almost off-hand inclusion of the Indiana Constitution. I note this because one of the things that continues to fascinate me is just how unfamiliar with the Indiana Constitution I’ve discovered most Hoosiers — including most Hoosier legislators — really are. I mean, if the authors of RFRA can cite the first part of the First Amendment to the United States Constitution directly, why can’t they also cite the applicable provisions of the Indiana Constitution? Anyway, my guess is that the portion of the Indiana Constitution included within the definition of “Establishment Clause” is Section 4 of Article 1 (the Bill of Rights):

Section 4. Freedom of religion. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

Note that Section 4 (and the other religion provisions of the Indiana Constitution) are both similar to and yet different from the First Amendment to the United States Constitution.

I hadn’t planned to discuss the term “granting” … until I re-read these definitions for the umpteenth time while writing this post. Note that the term “granting” does not include the “denial of government funding, benefits, or exemptions.” OK. Fine. So what? But then look at Section 3(c) which says that “[g]ranting government funding, benefits, or exemptions … does not constitute a violation…”. In other words, if the government gives funding, benefits, or exemptions, RFRA doesn’t apply; but if denying funding, benefits, or exemptions, then RFRA does apply. While the issues raised by this provision aren’t the focus of my attention, it is worth contemplating how RFRA might or might not apply with regard, for example, to the decision to provide or withhold vouchers for students to attend parochial schools. But that’s probably a discussion for another day.

One of the most interesting of the definitions in RFRA is that of “exercise of religion”: “[A]ny exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Ignore the circular part of the definition (exercise of religion means an exercise of religion…). More interesting, at least to me, are the following: First, what does “a system of religious belief” mean? While the statute defines “exercise of religion” it doesn’t define “system of religious belief”. For that matter, what do we mean by “religious belief”? For example, do “secular humanism” or “atheism” qualify as “religious beliefs”? I know that some people believe (wrongly!) that Islam is not really a religion because it includes a whole series of laws that govern societal behavior and not just worship (as do both Judaism and Christianity, though that doesn’t really advance the Islamophobic narrative); so does that include or exclude Islam within “a system of religious belief”? (That was rhetorical; obviously Islam is religion and the practice of Islam is part of “a system of religious belief”. But I raise the point because Islamophobia, especially from some of the same sorts of people who support RFRA, makes this an interesting point to contemplate.) Are Native American belief structures “a system of religious belief”? What about those espoused by less-mainstream groups like Scientology? Can Hell’s Angels or similar clubs who share a particular set of values claim those values or creeds as “a system of religious belief”? What about the new Indiana Church of Cannabis? I’m sure you can dig down into that rabbit hole very, very deeply. Plus, I guess one must ask what sort of belief one might have that isn’t part of system of religious belief. Is belief in science part of a “system of religious belief” (in that case either atheism or secular humanism or even “just science”)? Let’s not forget that many proponents of so-called “intelligent design” describe secular humanism or “belief” in evolution as secular religions.

But we’re not done… Because note that the definition of exercise of religion specifically notes that the exercise in question doesn’t have to be “compelled by, or central to” the “system of religious belief”. So what does that really mean? Clearly keeping kosher is central to Judaism; prayer five times per day is compelled by Islam; and taking communion is (I think) both compelled by and central to Catholicism. But what about divorce? Each of those religions have rules about divorce; about the circumstances under which divorce is, if ever, permissible. Are the rules pertaining to divorce central to or compelled by the system of religious belief? What about tithing or giving to charity? What about stoning disobedient children or those who bow down before “false gods”? Well, guess what? It doesn’t matter for purposes of RFRA. Rather, RFRA is only concerned with an exercise of religion and the language regarding “a system of religious belief” is essentially nullified by the “whether or not” proviso. In other words, under RFRA, “exercise of religion” means “exercise of religion” without regard to whether that exercise is compelled by or central to a system of religious belief. Or, more plainly, if you say your conduct is an “exercise of religion”, I don’t see any way whatsoever for that view to be challenged because your definition of exercise of religion does not need to be compelled by or central to the religion you claim (or, more accurately, the “system of religious belief” to which you subscribe). If your claim is that to exercise your religion you must shun homosexuals, Muslims, women with bad dye jobs, or people who like Justin Bieber, then that shunning is an “exercise of religion” notwithstanding that it isn’t really compelled by or central to your religion or any religion (well, other than shunning Justin Bieber; most religious shun him, don’t they?). Hmm. Can you see any problems with this expansive definition?

Obviously, the point is to be sure that RFRA doesn’t apply just to Christianity or just to Judeo-Christian or even Abrahamic faiths, but rather to all religions. Yet, at the same time, the law needs to stay clear of trying to determine what is a “real” religion or whether a particular faith compels or prohibits certain conduct. I don’t think anyone wants our courts to become arbiters of religious doctrine or to be hearing testimony from clergy with competing views of whether their particular view of their particular religion condones or prohibits a given conduct. Even worse would be asking courts to determine whether any particular religion is “real”. I’m sure that there are judges who would have no trouble finding that neither the Church of Cannabis nor the Church of the Flying Spaghetti Monster are “real” religions. But I’m also sure that there are judges who would say the same thing about Scientology, Wicca, Rastafarianism, and Yoga. And I suspect that there are judges would would also conclude that Islam and, perhaps even Judaism or Catholicism, aren’t “real” religions. Asking courts to decide which religions are legitimate and which actions are compelled or prohibited by those religions? There lies danger…

Furthermore, note that “exercise of religion” is said to “include” the exercise of religion but “includes” is a broad word and is not exclusive. In other words, the term “exercise of religion” under RFRA includes “any exercise of religion” but might also include actions (or inactions) other than the exercise of religion. One of the important aspects of statutory interpretation is to presume that the legislature knew what the words it wrote meant and intended that meaning. Thus the use of “includes” must be presumed to mean that the legislature meant for and intended the “exercise of religion” to mean more than just … the exercise of religion.

Are you confused? Don’t worry. I am too.

Section 6 simply defines “governmental entity”. This provision is largely innocuous, but it does have one specific inclusion that is worth noting. In Section 6(3), RFRA specifically includes “a state educational institution” within the definition of “governmental entity”. This is correct, I believe; however, over the years, we’ve often seen those who favor school prayer and the like argue that a school is not the government and thus not covered by the prohibitions of the Establishment Clause.

Then we come to Section 7, the definition of “person”. This definition is one of the most troubling aspects of Indiana’s RFRA statute. First, what do you think of when you hear the word “person”? And what do you think of when you think of the word “person” in relation to religion and faith? Let’s look at how the Indiana General Assembly defined “person” in RFRA (and ignore the poor grammatical structure):

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.

Let me break down the most important part of that again (clause (3)(B)):

“[P]erson” includes … [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 … 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.

Yeah, I know. It’s a mouthful. Anyway, with that definition, under RFRA, a “person” is not just an individual like you or me. Nope. A church or a religious organization is also a “person” (per clause (2)). That’s probably OK (at least for purposes of “religious freedom”). But under RFRA, “person” can also mean a for-profit corporation that exercises religious practices compelled or limited by the system of religious belief of its shareholders. Oops. Sorry. Not all of the corporation’s shareholders; only those “who have control and substantial ownership” of the corporation.

As an aside, when most corporations (or partnerships or limited liability companies) are formed, their organizational documents answer certain questions in advance, such as the purpose of the business, how the business will be managed, the relationship of shareholders to one another, and so forth. Often, certain areas of potential stress or conflict are dealt with in advance, in part as a means of reducing strife and tension that could later arise and, in part, as a way to determine how to respond to and resolve certain types of disputes. Thus, for example, many organizational documents will outline the process by which a corporation can decide to admit additional shareholders, sell corporate assets, or deal with the death or disability of a shareholder. Some of these sorts of matters are required to be included in the corporation’s organizational documents as a matter of law. But I’m willing to bet that the shareholders of very few for-profit corporations have had a discussion at the time of the corporation’s formation to discuss whether the corporation will exercise religious beliefs, which precise religious beliefs the company will adhere to, how the shareholders will be able to choose or revise the religious beliefs of the corporation post-formation, which shareholders’ religious beliefs will be given precedence, and what to do if the minority shareholders believe that their religious exercise is being burdened by the religious views of the majority. I bet that very few for-profit corporations have paid much attention to the religious affiliations or beliefs of their initial group of shareholders; I bet even fewer ask potential venture capitalists or other investors about their religious beliefs. I suppose, however, that when a corporation takes on a new investor, if that new investor has differing religious views, the corporation can go through a “religious conversion” of some sort. I’m curious to know which churches in town baptize corporations and how the Christian shareholders of a corporation would feel if they later learned that the new investor who pumped needed capital into the corporation wanted to convert it to Islam, Judaism, or Scientology. Or, even “worse”, become atheist…

I’m also intrigued by the conjunction “and” that links control of the corporation with substantial ownership of the corporation. Does that mean that a majority shareholder who isn’t also the CEO might have substantial ownership but not control for purposes of RFRA or that the board of directors might have control but if the directors don’t also have substantial ownership then they couldn’t use RFRA? I look forward to see that issue litigated…

One further curious thing to note in the portion of the definition of “person” applicable to corporations: As discussed above, the definition of “exercise of religion” specifically excludes a requirement that the exercise be compelled by or central to a system of religious belief. By contrast, the definition of “person” (but solely with reference to corporations) requires that the practices of the corporation be “compelled or limited by a system of religious belief”. So an exercise of religion can mean anything, whether or not compelled, but a corporation is only a person if its exercise is compelled or prohibited by the system of religious belief. I think. Um. Maybe. Yeah, my head is spinning a bit on that one, too.

Moreover, the defined term “exercise of religion” is abandoned in favor of “exercises practices”. Does “exercises practices” have a different meaning than “exercise of religion”? Why the change in terms and is that distinction meaningful?

Remember further that a corporation (or partnership, limited liability company, etc.) only falls within RFRA’s definition of “person” if it “exercises practices that are compelled or limited by a system of religious belief held by” the individuals “who have control and substantial ownership of the entity”. So let’s say that those individuals subscribe a a system of religious belief that prohibits abortion. How, precisely, does the corporation exercise those beliefs? How precisely does a corporation keep kosher? More importantly, can a corporation be considered a person for purposes of RFRA if it does none of the things required by the system of religious belief of its shareholders (well, other than the thing that causes the RFRA-based dispute)? If the system of religious belief requires tithing or baptism, how does that corporation exercise those practices? And if the corporation doesn’t do the things compelled by the system of belief, why should it be able to avoid those things prohibited? Said differently, think of a corporation that has Christian shareholders. The corporation isn’t baptized, doesn’t go to church on Sunday, charges interest on late accounts, doesn’t tithe to a church, employs divorced people and single mothers, and so on and so forth. But the corporation can choose not to do something vis-à-vis a gay couple because its “religious beliefs” say male homosexuality is bad?

Remind me again what Moses, Jesus, Muhammad, Buddha, and other religious figures have said about how corporations should show their religious devotion.

Finally, with Section 8(a) we come to the core of what RFRA is all about: “[A] governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” In order to parse this language, refer back to the definitions of “governmental entity” and “exercise of religion” discussed above. Of course, the obvious question is what constitutes a substantial burden on an exercise of religion? Don’t forget that the screwy definition of “exercise of religion” can mean virtually anything.

Before thinking too long on that question, it’s important to look at the last phrase of Section 8(a): “… even if the burden results from a rule of general applicability.” What does that mean, I hear you asking (with a trace of exasperation in your voice, no doubt…). A law of general applicability is one that applies to everyone and is not (or at least not intentionally) targeted at a particular group. Thus, for example, compare a law that prohibits animal cruelty with a law that prohibits ritual animal sacrifice. The former is a law of general applicability; the latter is aimed at a specific religious practice. Section 8(a) of RFRA would seem to permit someone to perform a ritual animal sacrifice even in the face of a law banning animal cruelty (and, in fact, unless I’m mistaken, cases dealing with Santeria animal sacrifices have been decided on just these grounds under both federal and state RFRA statutes). The law that directly prohibits a type of religious exercise will most likely fail the constitutional free exercise test; the law of general applicability may fail the RFRA test.

To go back to other real world examples of laws of general applicability and RFRA, consider both taxes and zoning laws. Taxes are (usually) laws of general applicability. Everyone pays taxes (though note that nonprofit, religious organizations, often don’t have to pay sales taxes and in some cases don’t pay property taxes, either). But consider, for example, a Quaker who objects to his tax dollars being used to pay for the military and claims that the law that requires him to pay taxes that will be used for that purpose to be a burden on his religious belief. Or consider a congregation that wants to build a church in the middle of a residential subdivision that is zoned only for residences and argues that the applicability of the zoning law would burden the congregation’s ability to exercise its religious beliefs. Or consider laws that require people to remove facial coverings when testifying in court so that the jury can see their facial expressions and the impact that such laws of general applicability might have on Muslim women. One can go on and on with examples of how a law that isn’t intended to have any effect on particular people on the basis of their religion can, nevertheless, have such an effect.

Oh, and just what is the measure by which a court is to determine whether a law actually “substantially burdens” someone’s religious exercise? Does the person put their hand on their Bible (yeah, I know, I know; I couldn’t resist) and swear that they have been substantially burdened? Or is more required? What kind of proof must someone introduce to demonstrate that a law creates a substantial burden? What if the element of the religious exercise that is impacted by the law is very minor to the faith? Can a minor point of religious exercise be substantially burdened? Is there an element of the notion of substantial burden that looks to the sincerity of the belief or to whether or not (remember the definition of religious exercise) the belief impacted is actually compelled or prohibited by the particular religious belief? Who decides?

To bring this discussion back to Indiana and the current situation, would a baker being forced to bake a cake for a same-sex lesbian wedding, even though his religious belief that says that male homosexuality is an abomination, being a substantial burden on the baker’s religious exercise? After all, the baker is not being asked to actually do the thing his religion condemns (the baker isn’t being forced to actually marry someone of the same-sex). And just how important of a “belief” is opposition to same-sex marriage (as opposed to male homosexual conduct) within the baker’s system of religious belief? Does it factor into the calculation of whether the baker is substantially burdened if it can be demonstrated that the baker doesn’t follow other, equally “important” tenets of faith or if there are competing doctrines (e.g., “do unto others”…)?

Now there is a major exception to the rule set forth in Section 8(a): “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.” Yeah, I know. Another mouthful.

Unfortunately, both of the critical terms in this exception are steeped in constitutional jurisprudence (legalese): “compelling governmental interest” and “least restrictive means”. I’d say that “compelling governmental interest” means just what it sounds like, but that would be belied by the volumes that have been written (not to mention the cases that have been argued) on just what interests are “compelling”. Thus, I suspect we can all agree that protecting people from the violent acts of others is a compelling governmental interest. So I don’t think that the government would have much trouble arguing that the first component of this test is met should someone argue that their religious exercise requires ritual human sacrifice. But what about a law that limits marriage to two individuals? Is the government’s interest in marriage, in particular limiting it to heterosexual couples, a compelling interest? What about a law that requires people to show their faces or hair on a driver’s license photo or when testifying in court? Or a law that requires pharmacists to fill all prescriptions unless they have a medical reason for refusing to do so. Or a law that requires slaughterhouses to use captive bolt stunning (or that prohibits killing livestock by slitting their throats). [Prohibiting the killing of animals by slitting of their throats (or similar means) would essentially deprive observant Jews of meat because the requirements for kosher meat are very specific in terms of how an animal must be slaughtered.]

Or what about local laws that impose safety restrictions on so-called childcare ministries. Might the childcare ministry challenging the law be able to argue that those safety restrictions aren’t a compelling governmental interest because the Indiana General Assembly has considered and rejected many such restrictions in the past? If, the argument might go, the General Assembly has considered and rejected such restrictions, then they must not have been compelling enough (at least for the state). And what about local protections for the LGBT community. Indianapolis and Bloomington (and other communities) may have decided that those groups are worthy of protection, but if the State of Indiana has not extended such protections, can such protection really be said to be “compelling”?

The problem, you’ll quickly find, is that to the person who believes that their exercise of religion is being burdened, the interest of the government is almost never compelling. And, from the perspective of the government (or of those being protected), laws wouldn’t have been passed if their need wasn’t compelling.

And that brings us to the second element to the exception: The “least restrictive means” test. Even if a law serves a compelling governmental interest, it must also be the least restrictive means of furthering that interest. Trying to hammer down precisely what this means is … well, that’s what the courts are for, isn’t it?

So, to take an extreme example, let’s go back to that ritual human sacrifice I mentioned above. Does the law banning murder further a compelling governmental interest? I don’t think many would argue the contrary. But is it the least restrictive? What if the person to be sacrificed consents (and never mind that we’ve now implicated laws against suicide, too)? Is the law banning murder the least restrictive or must that law fail because it could have been written in a less restrictive way that permits murder if the victim consents (and we just know how people feel about assisted suicide)? The law requiring pharmacists to fill valid prescriptions probably serves a compelling governmental interest; but is it the least restrictive means? Couldn’t the law have allowed for an exception if there was another pharmacist available who would fill the prescription? What if the substitute pharmacist is in the next town?

Again, when trying to analyze the concepts of compelling governmental interest and least restrictive means, you are entering a constitutional jurisprudence rabbit hole (or combat zone…).

The other important thing to note about Section 8(b) of RFRA is that the burden to prove both that the law furthers a compelling governmental interest and that the law is the least restrictive means of furthering that interest falls to the government. In other words, once a person asserts that their exercise of religion has been substantially burdened, then the government must prove that the law furthers a compelling government interest and is the least restrictive means of furthering that interest. That is often a very difficult burden to meet. And query whether a state attorney general who comes from a particular religious viewpoint might choose not to try to prove the compelling nature of the law in the first place. “Elect me and I won’t argue that these laws are compelling enough to force compliance by members of my chosen religious group…”.

Furthermore, it’s interesting to note the severe burden of proof placed upon the government while, at the same time, there is absolutely no standard set forth for what is necessary for a person to prove that their exercise of religion has been “substantially” burdened. Query whether an exercise of religion that is not compelled or prohibited by a system of religious belief or is not core to that system of religious belief can be so important as to be “substantially” burdened. And if you want to tease that out a bit more, consider that while some may oppose same-sex marriage on the basis of Biblical opposition to homosexuality, there isn’t a law requiring people to engage in homosexual acts or enter into a same-sex union and the Biblical prohibition is on the homosexual act itself, not the celebration of it via a wedding ceremony. Yeah, I know; repeating myself a bit… So…

Moving on…

Section 9 is, in a way, the “meat” of RFRA and it includes one of the key differences between Indiana’s version and the federal law (more on those other differences later). Essentially, Section 9 says that a person who believes that their “exercise of religion” has been “substantially burdened” can use RFRA’s protections either as a claim or a defense. In other words, the person can sue on the basis of RFRA’s protections or use those protections as a defense if sued. Well, that all makes sense. If RFRA is to have any meaning, it must allow for its protections to be used in litigation.

It’s the last part of the first sentence of Section 9 that raises concerns: “regardless of whether the state or any governmental entity is a party…”. Yeah, I know. More legal mumbo jumbo. What this means is that RFRA’s protections can be used in a lawsuit between private parties and to which the government is not a party. That is different than the federal law and (I believe) every other state RFRA. It is my understanding that the inclusion of this provision was in response to a decision of the Supreme Court of New Mexico in a case involving a suit by an individual against a florist (or was it a baker?) for violating the state’s civil rights laws. The florist claimed the New Mexico RFRA as a defense but the Court concluded that the florist couldn’t use RFRA because the suit didn’t involve the government. Or, said differently, the florist could have sued New Mexico to claim that the civil rights statute burdened the florist’s exercise of religion or could have used RFRA as a defense if sued by New Mexico, but couldn’t raise RFRA as a defense in a suit by an aggrieved individual who claimed the florist violated a non-discrimination law. Indiana decided to expand the scope of RFRA by allowing its use in disputes between private parties (but adds a provision to allow the government to intervene in the litigation). While it may seem like a minor point, this is actually a dramatic expansion of the scope of RFRA. It wouldn’t be surprising if RFRA defenses begin to work their way into all sorts of disputes between individuals (or companies). For example, I can already imagine a defendant challenging the statute that provides for interest at 8% per annum on certain debts on the basis of religious beliefs that prohibit the charging of interest. (I’ll let you try to articulate the compelling governmental interest in the statutory interest rate and why including such a law is the least restrictive means of furthering that interest.)

Section 10 of RFRA simply provides the types of relief that a party successfully asserting RFRA may be entitled to. These damages may include declaratory relief (i.e., a court order saying that a particular statute can’t be applied in a particular situation or against a particular person) or damages. Courts are also given leeway to award attorneys’ fees in “the appropriate case”. Two things are slightly unusual about this last provision, however. First, statutes that provide for an award of attorneys’ fees against the government are relatively rare. But I suppose that our legislators considered whether they want to put the government at risk for possibly having to pay out attorneys’ fees awards, right? More problematic, however, is that Section 10(c) of RFRA is not a mutual prevailing party provision. The statute only provides for an award of attorneys’ fees to a person successfully asserting a defense of RFRA against the government; the statute does not provide for the government to recover attorneys’ fees in the event that the RFRA defense (or offense, I suppose) fails. Thus, there is little incentive not to sue the government to assert rights under RFRA. A person who asserts those rights and loses will be out his or her (or the company’s) legal fees (but consider that many individuals might try to bring those cases on their own) while the government will have to expend fairly large sums for appropriate legal defense. This is why most provisions awarding attorneys’ fees do so to the prevailing party and don’t limit the possibility of award to only one side. But then civil rights litigation is, in many ways, a different animal.

And consider how this might play out in the criminal law arena. There is virtually no incentive not to assert RFRA as a defense to every criminal prosecution (especially if the accused is being represented by a public defender; the accused isn’t paying anything for his or her defense). Accused of robbing a bank? Argue that your religion prohibits poverty or the charging of interest or requires a redistribution of wealth. Accused of murder? Argue that it was a mandatory human sacrifice or point to one of the innumerable commandments in the Bible to stone or otherwise kill people who engage in certain conduct (my daughter talked back to me, your honor; I had to kill her!). Accused of rape? Argue that your religion subordinates women to the desires of men. You’ll most likely lose, but what the fuck… Maybe you’ll find a sympathetic judge. In any event, there was most likely no harm in raising the RFRA defense to the law. And if you win, not only will you not go to jail, but the government will have to pay your attorneys’ fees, too!

Finally, we come to Section 11 which was added to RFRA as an amendment in the final stages of its passage by the Indiana General Assembly. Section 11 protects employers from suits by employees, former employees, and job applicants. Why? Why does Indiana’s RFRA law take the side of employers (which are likely to be companies) in disputes with employees (who are always individuals)? If a company is entitled to argue that a law shouldn’t be applied to it because of the company’s religious beliefs, why shouldn’t an individual be able to challenge his employer’s actions? For example, say that there is a statute that prohibits discrimination on the basis of sexual orientation. And say that a bakery believes in equality and agrees to follow that statute (instead of challenging its applicability on the basis of RFRA). And now suppose that an employee of that bakery believes, on the basis of his or her religious beliefs, that homosexuality is wrong and that discriminating against gays is mandated by religious doctrine. When the employer tells the employee to bake a cake for a same-sex wedding and the employee refuses and is fired, why shouldn’t that employee be able to assert his or her own religious beliefs to the same extent that the baker could have if its religious beliefs opposed same-sex marriage? Obviously, with that example, I’m playing a bit of the Devil’s Advocate role, but I think you can see the potential problem. In all honesty, I’ve actually had a difficult time coming up with a realistic example in which an employee might have a RFRA-based claim against either the State or employer that would be viable but for the Section 11 exemption. If you can think of the example, please let me know. But at present, I’m drawing a bit of a blank…

When I first started writing this post, the so-called “fix” for RFRA had not yet been passed. But as this post took so long to write, it gave the General Assembly time to draft and pass some corrective language that was signed by Governor Pence. Please don’t get me wrong: I think that the fix includes some very good language and I’m glad that it was adopted; however, I would have preferred that RFRA be repealed in its entirety or that other fixes be made to solve some of the other problems that I’ve discussed above. The fix addresses the concern about businesses having the right to discriminate on the basis of a customer’s sexual orientation or gender identity. But it does nothing to address the notion that we’re going to treat companies as having religious beliefs; nor does it eliminate problems such as the “pharmacist’s conscience” (refusal to dispense birth control) scenario discussed above. In other words, the fix solved the problem that was the focus of protests, boycotts, and which generated so much controversy, but it didn’t fix all of the problems that this law may create.

So what exactly does the fix (Senate Enrolled Act 50) say?

First, the easy part: The fix added a new Section 7.5 with the definition of “provider” that will be used in the more substantive provision (to be addressed in a moment). “Provider” means “one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons”. Note that the word “provider” was used instead of “person”; I suspect that this was in order to build in exceptions to include a “church or other nonprofit religious organization or society, including an affiliated school” and a “rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society”. I think those exceptions are appropriate (and they are actually more limited than the excerpts of the definitions that I’ve included). One odd thing did strike me: The definition specifically mentions rabbis, priests, preachers, ministers, and pastors, thus including Jews and all (most?) Christian denominations; but, oddly, the list of clergy does not include imams. What? Indiana’s General Assembly wouldn’t possibly have consciously chosen to ignore or disrespect Muslims, would it?

Anyway, the core of the “fix” is found in the newly added Section 0.7 (yes, 0.7):

This chapter does not:

(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or

(3) negate any rights available under the Constitution of the State of Indiana.

It is worth noting (as someone pointed out on Twitter), that the fix is the first time that the phrases “sexual orientation” and “gender identity” have been used in an Indiana statute.

Anyway, if you read Section 0.7 carefully (and I recognize that not all of you are constitutional lawyers; for the record, I’m not either…), one thing may jump out at you. Catch it? Section 0.7 says that RFRA doesn’t authorize someone to refuse services and doesn’t establish a defense for refusing to provide services, but what Section 0.7 does not do is prohibit refusing services to someone on the basis of sexual orientation or gender identity. In other words, if the law in your city prohibits discrimination on the basis of sexual orientation or gender identity, then RFRA doesn’t help you; but if your city does not include those protections (or only provides a limited subset of those protections), then you can continue to discriminate to your bigoted heart’s content; you just can’t claim RFRA as the basis for your actions.

Furthermore, look at what Section 0.7 still permits: A “provider” can’t deny employment because of a person’s sex or sexual orientation, but could use their religious beliefs as a basis for denying employment to someone who is divorced or who has a child out of wedlock (neither marital status nor parental status being protected classes … at least I don’t think they are). Of course the issue of which groups should or should not be protected classes is a much broader issue, perhaps for another time. That being said, I can’t move on to the next subject without at least commenting on the statement of Indiana State Sen. Boots who, when in the wake of RFRA was asked about extending Indiana’s civil rights protections to the LGBT community, responded by asking when he, as a white Anglo-Saxon Protestant male would have a law to protect him, too. Notice any problem with this query? Like, perhaps, the protected classes that we already have include race (white), ancestry (Anglo-Saxon), religion (Protestant), and sex (male). In other words, this “aggrieved” idiot believes that the law permits discrimination against him and he is using his own ignorance and stupidity as a sword against those who face real discrimination. <Sarcasm>I do wonder whether “stupid right-wing asshole” should be a protected class.</sarcasm> The scary thing is that someone with as little understanding as Sen. Boots … is making laws.

One more quick point on the fix: Clause (3) of the fix says that RFRA doesn’t “negate any rights available under the Constitution…” Well, duh. No statute can negate rights granted by a constitution because it’s, you know, the constitution!

Comparison to Federal Law.

I’ve alluded several times to the differences between Indiana’s RFRA law and the federal law adopted back in the ’90s. I want to take a bit of time to talk about the key differences between the two laws. I think this is important because one of the constant refrains that we heard (and keep hearing) from supporters of Indiana’s RFRA is that it mirrors the federal or law (and it was signed by President Clinton!). Similarly, supporters point to the Illinois RFRA that was supported by then state-senator Barack Obama. Even Gov. Pence made these points when he made his disastrous Sunday morning news show appearance with George Stephanopoulos.

So how does Indiana’s RFRA compare to the federal law?

The most obvious difference is the specific inclusion of businesses within the scope of RFRA’s protections. The federal law does not include businesses. Now, some have pointed to the fact that there is another federal law (the Dictionary Act) that broadly includes corporations and other similar entities within the definition of individual for definitional purposes within federal law. True enough. However, there is also a notion of common sense that comes into play as well; that is, laws that talk about people aren’t always applied to corporations even if, by technical definition, that might be the result. Thus, corporations don’t go to jail. Corporations don’t get gun or hunting permits. And corporations don’t have religions or religious “beliefs”. Well, they didn’t until Hobby Lobby.

Unlike the federal law, Indiana’s RFRA law can be invoked not only when a person’s religious exercise has been substantially burdened, but also when it is “likely to be substantially burdened.” That’s not a major difference, but it is a material broadening of the scope from the federal law.

I’ve previously discussed the expansion of Indiana’s RFRA to disputes and litigation between private parties without government involvement. That is a dramatic difference from the federal law (and from other state versions of RFRA).

It may be worth reading the comments from Sen. Chuck Schumer (D-NY), one of the co-authors of the federal RFRA law:

In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law “simply mirrors” the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993. That may be true only if you’re using a Funhouse mirror. In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.

There are two simple reasons the comparison does not hold water.

First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.

Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.

Because of these significant, legal differences, the Indiana RFRA in no way resembles the intent or application of the federal RFRA. As the signer of the bill, Governor Pence should put a stop to it immediately.

Finally, an argument can be made that Indiana’s RFRA defines religious exercise more broadly than the federal RFRA. Similarly, an argument can also be made that the requirement that religious belief be sincere is a part of the federal law not necessarily incorporated into Indiana law. Though important, I’ve elected not to dive into these areas because doing so requires far too much analysis of court decisions that: (a) I don’t have the time to do; and (b) you don’t want to read.

I think, however, that it is safe to say that Indiana’s RFRA is broadly similar to the federal law in many respects, but that it does have important differences, some of which are obvious and others of which are more subtle and may not be truly understood until the passage of time and the litigation of issues that arise. I think that it is also safe to say that the impetus for passage of Indiana’s RFRA was dramatically different than the federal RFRA (hmm, why didn’t Indiana pass a RFRA when other states did following SCOTUS’ decision that the federal RFRA didn’t apply to states)?

Remember Arizona

Governor Pence and many Indiana legislators expressed surprise at the outpouring of opposition to Indiana’s RFRA law. Many claimed that the objections were unanticipated. Frankly, those sorts of claims are nothing less that Grade A bullshit. Seriously. First, had the legislators bothered to listen to the testimony of those who spoke to the General Assembly in opposition to RFRA, they would have heard all about the concerns that became very public following RFRA’s passage. For example, consider the following portion of the testimony given by my colleague Dr. Judy Failer on behalf of the Indianapolis Jewish Community Relations Council:

First, there would be unintended consequences. Under this law, people could use their religion to justify almost any discriminatory action they choose to take in their public lives. As our colleagues at the Anti-Defamation League have pointed out, this law could permit

  • an employer to say that his religion requires that he pay men more than women; or
  • someone who owes money on a lien to get away with not paying his debt because he has a religious objection to paying interest[; or]
  • a Jewish pharmacist [refusing] from filling a prescription for a patient he knows to be Jewish because a tablet contains gelatin and gelatin is not kosher.

In these examples, the law would permit people to use their religion to discriminate against others, and this is wrong.

As members of a religious minority, we ALSO worry that people would use this law to justify discrimination specifically against other religious minorities. This law would permit

  • a Christian hotel owner to refuse to rent rooms to Jewish people who would use their rooms for prayers; and it would permit
  • a Muslim-owned cab company might refuse to drive passengers to a Hindu temple[; and] It would also permit
  • a modern day Pagan could refuse to lease his commercial space to a store-front church.

The language of these bills certainly permits these scenarios, and that in itself is a problem.

Each of us here today knows that these actions are wrong. And, we all would hope that judges hearing these cases would decide — as some judges have done in other states — that antidiscrimination is enough of a compelling governmental interest to overcome the presumption set out in this law.

The Indiana Constitution already provides a strong foundation of religious freedom, stronger in-fact than the U.S. Constitution. And, antidiscrimination laws in this state DO protect us against discrimination based on religion. But if someone were to use his religion to discriminate against people based on some other kinds of characteristics, our judges would be unable to prevent it.

I don’t believe that anyone intends to lay the groundwork for these awful scenarios, but these bills, as framed, could unintentionally do just that.

However, speaking as someone who has testified to the General Assembly on several occasions, it is sadly quite rare to find legislators who attend hearings and who do so with an open mind or even a modicum of interest in what the “other side” has to say. Far too often, legislators, if they show up at all, sit quietly at their desks doing other work paying little, if any, attention to those who are testifying. Their minds are already made up, even if they don’t have much understanding of what proposed legislation will or won’t do.

Moreover, as I’ll discuss in a moment, any legislator paying attention to the proposed amendments to RFRA should have understood the nature of the concerns.

Finally, how are we supposed to accept the notion that legislators were “surprised” or that outcry was “unanticipated” when Arizona went through an almost identical upheaval and uproar just a a year ago? In January and February 2014, the news was abuzz with a very similar law passed in Arizona. That law, like Indiana’s RFRA law, would have given businesses the right to discriminate against members of the LGBT community. Businesses like Delta Airlines, Major League Baseball, and, perhaps most importantly, the NFL and Super Bowl host committee spoke out against the bill. Groups threatened to cancel conventions or move them elsewhere. Boycott movements sprung up. And in the end, under intense public scrutiny and pressure, Arizona Gov. Jan Brewer vetoed the bill.

But just a year later, Indiana legislators passed and the Governor signed a very similar law and were “surprised” by the reaction.

Like I said: Bullshit.

Let’s also remember what Advance America and similar groups who supported RFRA (and who opposed same-sex marriage) were telling their supporters (and legislators):

    1. Christian bakers, florists and photographers should not be forced by the government to participate in a homosexual wedding.
    2. Pastors should not be forced by the government to conduct a homosexual wedding at the church.
    3. A pro-life business owner should not be forced by the government to rent his facility to a pro-abortion group.
    4. A pro-life business owner should not be forced by the government to provide abortion coverage for his employees.
    5. A Christian business owner should not be forced by the government to permit a male cross-dresser to use the women’s restroom.

[Emphasis in original.] But note that in none of these examples is the “aggrieved” party actually exercising religion. The Christian baker, florist, and photographer aren’t engaging in prohibited (male) homosexual acts or actually marrying someone of the same-sex; the pro-life business owner is neither getting an abortion or even advocating in favor of abortion; and the Christian business owner isn’t engaging in any act prohibited by a religion that I’m aware of if he permits a cross-dresser to use a women’s restroom (and even if there is a religious prohibition on wearing the clothing applicable to the opposite sex [which, I’ll note, women do all the time…], how is the Christian business owner violating that religious prohibition by letting the cross dresser into a restroom?).

As a brief aside, I find it interesting that those who oppose same-sex marriage (or homosexuality in general) are so worked up by and so focused upon the notion of a man dressing as a woman in order to use a women’s restroom. Consider the comments of Presidential contender (and general idiot) Mike Huckabee earlier this week:

“Now I wish that someone told me that when I was in high school that I could have felt like a woman when it came time to take showers in PE,” Huckabee said. “I’m pretty sure that I would have found my feminine side and said, ‘Coach, I think I’d rather shower with the girls today.’ You’re laughing because it sounds so ridiculous doesn’t it?”

Would you really choose to live your life in drag, subjecting yourself to all sorts of hate and abuse, putting your job and physical well-being at risk, just to see women in a restroom? Yet that seems to be the thinking with regard to transgender individuals repeatedly expressed by same-sex marriage and equality opponents.

Note further the common use of terms like cross-dresser or just references to a “man wearing a dress” rather than focusing on the true nature of the individual as transgender (or a member of any of a host of other gender queer categories). Those, like Mike Huckabee, who oppose transgender rights just can’t seem to wrap their heads around the notion of people having different understandings of self than may be presented by biology. And, unfortunately, they don’t seem particularly interested in learning. Or caring. Just denigrating and discriminating. Or worse.

Ah, but the plight of the transgender community is a topic for another day.

Anyway, back to the claim of “surprise”…

A further point that I’d almost completely forgotten, is that Republicans tried to pass a sort of mini-RFRA in 2014, immediately after the failure of the marriage discrimination amendment. That bill would have allowed certain businesses that do business with the State of Indiana a right to discriminate on religious grounds. The bill was tabled after it received criticism and after concerns with the use of “religious freedom” to condone discrimination were raised. So are we really supposed to believe that legislators were “surprised” about the criticism to a broader bill introduced less than a year later?

Um, no.

I can’t move on without at least mentioning some recent comments by Sen. Kruse:, the sponsor of the Indiana RFRA legislation:

“For some reason the media and gay community surrounded us with this discrimination thing. This bill was not designed to do anything with discrimination in general. It was just one of those issues that got out of hand and out of control.”

“As we got closer to that time, more attention was coming to Indianapolis and I think people just jumped on that,” said Kruse. “We were the center of the American news and we were thinking why doesn't some other catastrophe happen and the news go cover a Nepal earthquake or something”.

He wanted a catastrophe to take attention away from the bad law that he sponsored? Really? Oh, and for those who are unfamiliar with Sen. Kruse, he is the legislator who has sought to have children in public schools recite The Lord’s Prayer each day, wanted to give parents some kind of “liberty” in how they raise, educate, and discipline their children, believes in far right conspiracy theories like Agenda 21, wanted public schools to teach creation theories, and wanted FBI agents to get permission from county sheriffs before serving warrants for federal crimes. That is who sponsored RFRA in Indiana. Perhaps just recognizing the worldview from which Sen. Kruse comes to issues like “religious freedom”, same-sex marriage, and discrimination should be enough to put most people on the opposite side of any legislative initiative Sen. Kruse supports.

Proposed Amendments Demonstrate Intent

Proponents of Indiana’s RFRA insist that the purpose of the law was not to permit discrimination. Further, they argue that they were surprised by the backlash against the law which they claim was unanticipated. One of the easiest ways to analyze these claims, however, is to review the amendments that were offered by Democrats during the discussion of and votes on passage of RFRA. All of these amendments failed to pass and the votes were largely on party lines (which, given the Republican super-majority in both chambers, means that the votes weren’t even close). As you read these proposed amendments, keep the foregoing discussion in mind and then ask yourself why some of these proposed amendments were not adopted, especially if the intent of the bill was, as claimed, not to permit discrimination. Try to articulate an explanation for why you would vote against one of these amendments if your purpose in voting for RFRA had nothing to do with permitting discrimination.

Senate Amendment No. 1 (failed 40-10) introduced by Sen. Tallian (and almost identical to House Amendment No. 6) would have required a business that uses RFRA as the basis of a refusal to serve someone to first post a conspicuous sign telling potential customers that the business believes that a particular law or ordinance burdens the business’ religious exercise and identifying the groups or classes of individuals who will not be served by that business. In other words, the bakery would have to have a sign that says, “We believe same-sex marriage burdens our religious beliefs, so we do not bake cakes for same-sex weddings.” Now, I’ll agree that seeing signs like that would be a bit … weird. It would be a bit like seeing a sign that says “No Blacks Allowed”. But if the purpose of RFRA was not to allow a business to discriminate, then what is the problem with asking a business that does choose to discriminate from saying so in advance? If RFRA really isn’t about discrimination by businesses, then none of these sorts of signs would be posted, right? If, however, RFRA really is about giving businesses the right to discriminate, then why shouldn’t the public know in advance whether a particular business will invoke its religion to refuse service?

Senate Amendment No. 3 (failed 40-10) took a different approach. That amendment, also introduced by Sen. Tallian, simply replaced the word “person” with “individual” and deleted the definition of “person” that included corporations. As discussed above, the inclusion of businesses within the definition of “person” in RFRA essentially gives businesses a right to practice a religion. Now think back to the cases for which the original federal RFRA was intended to address (Native Americans smoking peyote as part of a religious service). Do you really think that those who passed the original RFRA legislation contemplated extending the notion of religious exercise to for-profit corporations? Certainly, Sen. Schumer didn’t think that was what his legislation was intended to address. Moreover, if the intent of Indiana’s RFRA law isn’t to permit a business to discriminate, then why do we need to include businesses within the protections of RFRA? A business isn’t going to Hell for failing to go to church on Sunday; a business doesn’t go to confession or take communion or even pray. So what exactly is it that a business is doing that really qualifies as the exercise of religion such that it needs protection via RFRA. Why couldn’t RFRA be limited to protecting individuals?

Senate Amendment No. 4 (failed 40-10), introduced by Senate Minority Leader Lanane would have added the following to RFRA:

This chapter does not apply to (1) IC 22-9-1 (Indiana civil rights law); or (2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

Curious, isn’t it, that if RFRA was not intended to permit discrimination, an amendment exempting the civil rights law or local non-discrimination ordinances from RFRA was defeated. If you advocate for RFRA but vote against an amendment to prohibit discrimination, then aren’t you, in essence, advocating for the right to discriminate? I’d really like to hear some of the proponents of RFRA explain why they voted against this amendment if RFRA wasn’t intended to permit discrimination.

And remember when I discussed the right of the person successfully asserting a RFRA claim to receive attorneys’ fees but the lack of a corresponding right of the government in the case of an unsuccessful suit? Well Senate Amendment 7, offered by Sen. Broden would have changed that provision so that the “prevailing party” could have recovered fees. It failed. Now think about that for a moment. Those who voted for RFRA agreed that the government should pay attorneys’ fees to a person (or business) who sued on the basis of RFRA (or used RFRA as a defense), thus putting the State’s coffers (your tax dollars) at risk, yet they voted against making those people (or businesses) pay the State’s costs (i.e., repay you) if their RFRA claim was unsuccessful. Again, why? Why the difference in treatment?

Over in the House, Rep. Riecken offered House Amendment No. 1 (defeated 61-30) which would have added the following as an alternate exemption to RFRA (in addition to the compelling interest and least restrictive means exemption):

the governmental entity is applying or enforcing a statute, an ordinance, a resolution, an executive or administrative order, a regulation, or a custom to protect the health, safety, or welfare of a child.

I can see you scratching your head at this one and thinking, “Gee, wouldn’t protection of children be a compelling governmental interest?” Maybe not. As mentioned above, childcare advocates have been trying for years to get statewide laws to regulate so-called “childcare ministries” so that they would need to meet certain basic safety standards. Only in the last few years has the General Assembly been able to pass the most basic of regulations over the objections of (primarily) the religious right who sees these sorts of regulations (you know, like a requirement for smoke detectors or clean drinking water) as infringing on their religious freedoms. Seriously. So if the state can’t pass more stringent and far-reaching regulations, it seems dubious that a local community could successfully argue that it’s own more stringent ordinance could be deemed to be “compelling” if that same interest wasn’t compelling enough to sway the General Assembly to act. Or what about a parent who severely injures a child because his religion demands extreme discipline. And let’s not forget female genital mutilation and faith healing. This amendment might have been useful should those sorts of situations and defenses arise. Alas, it appears that RFRA’s supporters value religious freedom more than the safety of children. Good to know. And consider further than this House Amendment 1 was limited to children. Rep. Riecken didn’t try to exempt the health, safety, or welfare of all Hoosiers; just children. And yet 61 representatives voted against that exemption.

House Amendment No. 2 (defeated 60-31) introduced by Rep. DeLaney has several interesting ideas, none of which was adopted. First, the proposed Amendment would have stated categorically that “protecting the welfare of a child from abuse or neglect” and “protecting the health, safety, and welfare of the public, including protection against discrimination on any ground prohibited by federal, state, or local law” were compelling governmental interests. Wouldn’t you like to hear a RFRA proponent explain why that language wasn’t adopted? Note that the language doesn’t say anything about “least restrictive means”. It just identifies certain categories of law and makes a claim (which could be rebutted in court) that those laws serve compelling governmental interests.

House Amendment 2 also would have clarified one of the problems that I identified above with regard to the definition of “exercise of religion” by replacing the phrase “any exercise of religion” with “the practice or observance of religion.”

House Amendment 2 would have also changed the portion of the definition of “person” relating to churches and the like by limiting those types of organizations that are included in that portion of the definition to organizations that are tax exempt organizations under the Internal Revenue Code.

Finally, House Amendment 2 would have added limitations so that RFRA could not be used: (a) “in a criminal case involving a sexual offense or other abuse committed against a minor”; (b) by a public official to refuse to “faithfully and truthfully execute all duties required by the employee’s or officeholder’s oath of office”; or (c) to “justify practices inconsistent with the standards of care or service applicable to licensed professionals”.

The prohibition I’ve set forth as (c) would go directly to the pharmacist’s conscience defense that I’ve discussed previously; it would also prohibit, say, a doctor from refusing to perform an emergency abortion necessary to save a woman’s life. It would also prohibit a doctor from giving incorrect medical advice (such as the use of birth control medications to address other problems) because the doctor’s religious beliefs don’t condone the appropriate medical remedy or response. But that provision was defeated.

The provision I’ve enumerated above as (b) would, for example, prohibit a county clerk from refusing to issue a marriage certificate to people that the clerk doesn’t believe should be able to marry (and go beyond same-sex marriage here; think about interracial marriages, interreligious marriages, and marriages between previously divorced people). It would also prohibit a judge from making a ruling (or refusing to act in accordance with law) because of that judge’s religious views. Just imagine a judge who refuses to convict a man of spousal abuse because the judge believes, on the basis of his religion, that women submit to their husbands. Or what about a policeman who refuses to arrest someone for beating up a gay man or a fireman who refuses to put out a fire at a mosque … on religious grounds? Or maybe just a police officer who refuses to guard a gay pride parade? North Carolina just passed a law (and is in the process of overriding the Governor’s veto) that would allow state officials to refuse to issue marriage licenses on religious grounds, even if the couple is lawfully entitled to a marriage license.

And provision (a) … well, does that really need any explanation at all? I suppose that those who voted against that provision think that a person who sexually abuses a child should be allowed to say, “Well, my religion permits it!” What other explanation can there be for not passing that exemption? If you have a chance to talk to a Republican representative, you might ask why they voted against that sort of provision.

House Amendment No. 3, also introduced by Rep. DeLaney, has what I think is one of the most important provisions that was left out of RFRA, though I’ll acknowledge that adding this provision would also open a whole new can of proverbial worms:

A person asserting a claim or defense [under RFRA] must demonstrate that the claim or defense is based upon the person’s sincere religious belief.

Unless I’m mistaken, many of the state RFRA statutes include the notion of “sincere religious belief” and federal jurisprudence on what the Free Exercise Clause of the First Amendment protects is also grounded in the notion of sincere belief. Of course, the problem is that courts are loathe to involve themselves in determining which beliefs are sincere. But if someone (especially a business) is going to use religion to discriminate against someone else or avoid the mandates of a law of general applicability, shouldn’t there be some kind of test to be sure that the religious belief is sincere (or even sincere-ish) and not, for example, made of out whole cloth solely as an excuse to discriminate or to “opt out” of complying with a law? Without this sort of requirement, the new Church of Cannabis that was created to avoid marijuana rules should, I think, stand a very good chance of success using RFRA as a defense to prosecution.

Finally, House Amendment No. 5 (defeated 60-31), again introduced by Rep. DeLaney, expressly stated that the protection of civil rights and the prevention of discrimination were each compelling government interests. Apparently, 60 Republicans disagree. Is it, therefore, safe to argue that those 60 Republicans believe that it is not a compelling governmental interest to prevent discrimination? And if the government doesn’t have an interest in preventing discrimination, just who will prevent it? Or do they just not care or even want to see discrimination against certain “undesirable” elements of the community?

Letter from Law Professors

Before concluding, I want to highlight a few sections from a letter organized by Columbia University School of Law that was sent to Rep. DeLaney. The letter was signed by professors from fourteen law schools, and included twelve signatories from Indiana law schools, including Jeannine Bell, Aviva Orenstein, Carwina Weng, Deborah Widiss, Susan H. Williams, Shawn M. Boyne, Jeffrey O. Cooper, Jennifer Drobac, Rob Katz, Fran Quigley, Florence Wagman Roisman, and Lea Shaver.

Religious liberty, while fundamental, finds elevated protection under the Indiana Constitution along with other fundamental rights, and the hard work of the courts has been to find the proper balance among those rights.  As the Indiana Court of Appeals observed when it denied a state police officer’s plea for an exemption from working as a riverboat gaming agent on account of his religious objections to gambling: “Churches, and by implication the religious freedoms enjoyed by worshippers, are subject to reasonable regulations, not tantamount to alienation, by the State to the extent as might be required to promote the public health, safety, or general welfare … Law-enforcement agencies need the cooperation of all members … Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police.”

Federal free exercise doctrine follows a similar trajectory. A longstanding constitutional principle has held that neither the government nor the law may accommodate religious belief by lifting burdens on religious actors if doing so shifts those burdens to third parties. We see this principle enshrined in the U.S. Supreme Court’s recent decision in Holt v. Hobbs, a case in which a prisoner of faith sought an exemption from a prison no beard-policy because his sincerely held religious beliefs required him to wear a short beard.  The Supreme Court found unanimously that the Religious Land Use and Institutionalized Persons Act (RLUIPA) required that the Arkansas Department of Correction accommodate the prisoner’s religiously-based demand for an exemption from the no-beard policy. The unanimity of the decision turned on the fact that no third parties were required to bear the cost of the requested accommodation. The Supreme Court has consistently held that the government may not accommodate religious belief by lifting burdens on religious actors if that means shifting meaningful burdens to third parties. This principle protects against the possibility that the government could impose the beliefs of some citizens on other citizens, thereby taking sides in religious disputes among private parties. Avoiding that kind of official bias on questions as charged as religious ones is a core norm of the First Amendment.

[Advocates who favor the proposed state RFRA have argued that the proposals, at their core, mirror the federal RFRA, and that the federal law, in place since 1993, was supported by a wide coalition of Republicans and Democrats – and indeed, was signed by President Bill Clinton.  It is argued that given this bipartisan support for the federal RFRA in 1993, the proposed state RFRAs, mirroring the text of federal law, should also receive bipartisan support. However, this parallel between support for the federal RFRA and the proposed state RFRA is misplaced. In fact, many members of the bipartisan coalition that supported the passage of the federal RFRA in 1993 now hold the view that the law has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law. As a result, the legislators who voted on RFRA have distanced themselves from their initial backing of the legislation. This fragmentation occurred over questions such as the application of RFRA-based rights as a defense to liability for housing discrimination, the debates concerning the never-enacted Religious Liberty Protection Act (RLPA), debates over the scope and meaning of the Religious Land Use and Institutionalized Persons Act passed by Congress in 2000, and disagreement as to whether corporations of any size or corporate form could be religious liberty rights-holders.

In our expert opinion, the clear evidence suggests otherwise and unmistakably demonstrates that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests.  This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so.  Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.  As we have learned on the federal level, RFRAs do not “open a door” to conversation, but rather invite new conflict that takes the form of litigation. This collision of public rights and individual religious beliefs will produce a flood of litigation, whereby Indiana courts will be asked to rebalance what has been a workable and respectful harmony of rights and responsibilities in a pluralistic society

[Internal citations and footnotes omitted.] The full text of the letter is available here.


At its most basic, some form of RFRA is probably a good idea. I think that we’re all concerned with the possible application of law that would stop us from doing things that our faith requires (Native Americans and peyote) or force us to do things our religion prohibits (such as requiring a pacifist to serve in the military). However, I believe that these recent incarnations of RFRA are really aimed at protecting a different set of concerns and addressing a different set of issues. There is an enormous difference between protecting a person from being unable to actively practice what their religion requires or forcing them to do what their religion prohibits and allowing a person to use his or her religious views as grounds to do or not do something that has an impact on a third party. There is a difference between doing something and being paid to have a business relationship with someone else who is doing something. There is a difference between engaging in prohibited conduct and being associated with an event or with people who might engage in disfavored conduct.

And there is an even bigger gap between the idea of protecting an individual who wants to practice his or her religious observances and obligations and protecting a business that wants to use the religious views of its owners to discriminate against those who might not share those same beliefs.

Unfortunately, it seems clear to me that Indiana’s adoption of RFRA was not really about protecting the Native American who wants to smoke peyote, the Muslim prisoner who wants to grow a short beard, the Santeria priestess who wants to ritually slaughter a chicken, or the Jewish family who wants to serve a little wine as part of a bar mitzvah ceremony. Rather, it was about protecting mostly evangelical Christians who are so worked up over same-sex marriage that they felt that their religious views were “under attack” and needed to be prevented. It was about giving one group an “out” so that they wouldn’t have to have involvement with people who have worldviews that are different from their own. It was about trying to let those people hold back the ever-flowing tide of progress, in particular progress toward tolerance and equality.

We must also be wary of “pick-and-choose” or “cafeteria” theology that makes no real demands upon people and which offers them the ability to obey just those rules that they like but which can then also serve as a sword to be used against others or a shield to be used when convenient. I’m not suggesting that people shouldn’t have the right to pray and believe as they choose; hey, that describes my approach to faith. But I have grave concerns when people ignore all sorts of religious obligations and prohibitions, but make an active effort to choose and prioritize those prohibitions that have little or no impact upon the “believer” but a severe impact upon others. I may not be the most observant Jew; I’ve chosen which elements of my religion I do and don’t want to make a part of my everyday life and my belief structure. But I don’t take those choices or other Biblical commandments or prohibitions and try to force others to live by those dictates. I don’t try to stop others from eating pork just because G-d said “yuck” and I don’t try to keep the schools from serving pork, either. I don’t try to outlaw barbershops or football. And I wouldn’t avoid a wedding just because they planned to serve shrimp cocktails.

So, while I may support the core notions behind RFRA, as initially codified, the purpose and nature of the law have changed dramatically. No longer can RFRA be seen as, primarily, an innocuous law that would have little effect; rather, it has become a sword that can be used to cut at the fabric of our civil society and to further segregate and separate people on the basis of certain characteristics. And that is an idea with which I fundamentally disagree. It is an idea that frightens me. Perhaps those who are pushing this sort of legislation should try living as part of a minority community that has faced discrimination. Yeah, right.

Please, when considering the impact of laws like RFRA, stop thinking of them — or allowing them to be framed — solely with regard to impacts upon the LGBT community. Instead, ask yourself if you would be comfortable with the same result if it were applied to someone on the basis of their race or religion. Should the florist be able to refuse service to the gay couple, but not the black couple or the Muslim couple? And think beyond just discrimination. Think about women in small towns who might be denied birth control because their local pharmacist believes that birth control violates his religious belief.

Moreover, if the purpose of Indiana’s RFRA law really wasn’t about giving a right to discriminate against homosexuals, then why didn’t Republicans accept proposed amendments that would have addressed that concern?

Protecting true religious liberty and freedom is important; it is bedrock to our society and our Democratic system. But we can’t allow prejudices and bigotries to work their way in (or back in) to our society and culture. We need to be clear in our understanding of the difference between religious liberty as expressed in individual exercise of religious obligation and prejudice that uses religious belief as an excuse to keep away those that religious dictates hold in disfavor. If your religion says that same-sex marriage is wrong, then don’t have a gay wedding; but just because your religion says that same-sex marriage is wrong doesn’t mean that your religious views should prevent others from doing certain things or give you an excuse to discriminate against those who hold different, especially minority, views.

The notion of religious liberty exists to protect each of us from a majority that might want to stop us from doing those things that our religion demands (or force us to do those things that our religion prohibits). Religious liberty does not exist to keep us from being offended by how others live their lives or by what they choose to believe. Freedom is about the individual; it is not about corporations and it is not about giving an individual a right to impose their belief structure upon others or to wield those beliefs as a sword against those who hold different beliefs. That is the concept that has been lost in the years between the peyote smoking Native Americans and the florist, bakers, and photographers opposed to same-sex marriages.

I hope that you can see the difference.

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