By Chris Jennison and Lexi Herman
In recent months, there has been much buzz lately about the “Indiana Religious Freedom” law, as well as analogous bills that are being debated in several states. For example, many have wondered: could the new laws really allow restaurants to deny service to customers who are gay? What is lacking in much of the discussion, though, is a look at the legal considerations and implications of the bills, so we decided to dive in.
What is the Religious Freedom Restoration Act?
On March 26, 2015, Indiana Senate Bill 101 known as the Religious Freedom Restoration Act (“IRFRA”) was passed by a vote of 40-10 and signed into law by Governor Mike Pence. Going into effect on July 1, the law states that “a governmental entity may not substantially burden a person’s exercise of religion” unless it passes what is known as “strict scrutiny,” a higher standard than what had been in place.
Under this standard, the Indiana governmental actor may substantially burden religious exercise only if it demonstrates that the application of the burden (1) promotes a compelling governmental interest and (2) is the least restrictive means of furthering that interest. IRFRA also allows any individual, organization, corporation to cite a violation of this law as a defense in a legal proceeding. The bill explicitly states that no government agency needs to be involved in the legal proceeding for a person to invoke the defense, however if a person invokes the defense, a government agency has the right to respond to the use of the defense.
The effect of this legislation is that governmental entities in Indiana must provide strong justification for any burdens they place on religion. This law also does not, contrary to popular belief, create a private license to discriminate or to deny services to any individual, but rather, simply sets a standard by which cases involving religious objections will be judged.
Roots in the Federal Religious Freedom Restoration Act
In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court determined that a state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, a powerful hallucinogenic, even though the use of the drug was part of a religious ritual. At that time, intentional possession of peyote was a crime under state law, without a religious use defense. The Court said that although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so.
Congress responded to this decision in an attempt to prevent such problems by passing the Religious Freedom Restoration Act (“RFRA”) in 1993. The RFRA required that government demonstrate a compelling need when it regulated religion, and show that the regulation was no more restrictive than necessary. Senators Ted Kennedy and Chuck Schumer sponsored the bill, there was significant bipartisan support, and it was signed by President Clinton.
Four years later, the Supreme Court held that RFRA was unconstitutional when applied to the states via the 14th Amendment. The Roman Catholic Archdiocese of San Antonio was prevented from doing construction on a church in Boerne, Texas due to a city ordinance protecting the building as a historic landmark. The church sued, citing RFRA, and in the resulting case, City of Boerne v. Flores, 521 U.S. 507 (1997), the RFRA was struck down with respect to its applicability to States.
20 states have since passed state versions of the RFRA, applying the rule to the laws of their own state. Most recently, Indiana and Arkansas passed state RFRAs, as well as Illinois, where then-state senator Barack Obama supported the legislation. In another 11 states, courts have interpreted state constitutions to provide similar protections. As such, some version of RFRA controls 31 states and the federal government (in those states).
Additionally, the constitutionality of RFRA as applied to the federal government was confirmed in 2006. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) involved the use of an illegal substance in a religious ceremony, and the Court stated that the federal government must show a compelling state interest in restricting religious conduct.
Major Differences between Federal RFRA and the Indiana RFRA
The federal RFRA had bipartisan support and was signed into law by President Clinton, but the IRFRA does not have the same bipartisan support as the federal act did; some legal scholars think it is because differences between the two acts. The Indiana statute has two features the federal RFRA (and most state RFRAs) do not.
First, the Indiana law explicitly allows any for-profit business to assert a right to 'the free exercise of religion.' The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania explicitly exclude for-profit businesses from the protection of their RFRAs.
Additionally, the new Indiana statute also says that “[a] person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” No other RFRAs, besides the Texas version passed in 1999, contain similar language.
Response to IRFRA
After IRFRA was signed into law, there was a nationwide outcry. Many people began claiming that the purpose of the act was to allow discrimination based on a person’s sexual orientation or gender identity. Several states, including New York and Connecticut, as well as many smaller municipalities, prohibited for a time any government employees from traveling to Indiana and many businesses openly opposed the law’s passage. Many well-known businesses have also expressed opposition to the law; the NBA, the WNBA, the Indiana Pacers, Indiana Fever, Apple, Sales Force, the Indiana Chamber of Commerce, the NCAA, the video game convention Gen Con, Subaru and Eli Lilly have spoken out against the law or have outright pulled all business from the state. Most notably, the online consumer review website, Angie’s List, halted a $40 million expansion of its Indiana headquarters.
Chief among other well-known challengers of IRFRA is Apple CEO, Tim Cook, who came out as gay last year. Cook took to Twitter to criticize the Indiana law, stating that “Apple is open for everyone. We are deeply disappointed in Indiana’s new law.” Soon after Apple announced that all events in Indiana had been cancelled for the time being.
However, not everyone is frustrated by the law. Proponents of the law like Former Florida Governor Jeb Bush responded to the backlash by saying once people are able to see the law, they will understand that IRFRA is not a license for discrimination. U.S. Senator Marco Rubio of Florida went one step further, stating that businesses should have the right to discriminate against gay and lesbian couples if they believe it to be in violation of their faith.
While Indiana Governor Pence has remained silent on whether Indiana citizens have the right to provide services to same-sex couples, he continued to deny that the point of the law was to allow for discrimination, saying that the law had been mischaracterized.
“A License to Discriminate”?
Some opponents to IRFRA started calling the act “a license to discriminate” comparing the act to other laws that have been used to discriminate against certain people, most notably Jim Crow laws. As one woman put it, “I remember reading from history there were signs that said no African Americans” and, now, she is concerned she will see those same signs, only this time they will prevent her from entering because she is a member of the LGBT community.
However, Governor Pence and other proponents of the law do not see it this way. They have continuously stated that the law does not permit discrimination of any kind. That the idea that IRFRA is a license to discriminate is simply a “red herring”. Governor Pence said, “this isn’t about disputes between individuals; it’s about government overreach.” When asked specifically whether this act allowed legal discrimination against gays and lesbians, Governor Pence repeated that this act is about giving citizens their religious liberty and that he would continue to explain the real purpose of the act until everyone understood. This continuing “confusion” over what the bill actually does led Governor Pence to sign an amendment to the law clarifying its purpose and effect.
Amendment
Following the negative response, Governor Pence signed into law an amendment to RFRA on April 2, 2015 that included language explicitly preventing an entity from refusing to offer or provide services to any person on the basis of sexual orientation or gender identity.
Bills in Arkansas and Louisiana
Arkansas Governor Asa Hutchinson signed a similar religious freedom measure into law on April 2nd after state lawmakers. After the backlash in Indiana, Governor Hutchinson rejected the first version Arkansas lawmakers had sent to his desk, instead asking for two tweaks so there would be no differences between his state's law and the one President Bill Clinton signed in 1993.
And in Louisiana, Republicans are pushing to “enhance” their current law through a religious freedom bill that goes beyond the implications of the Indiana Law. Governor Bobby Jindal is pushing legislators to pass the “Marriage and Conscience Act” to modify the state law before this legislative session concludes. Unlike the Indiana bill, the Louisiana bill goes beyond simply a judicial defense by granting people of faith blanket protection against any government action.
Many people are worried that the boycott that happened in Indiana will also happen in Louisiana. Major businesses in Louisiana are also worried; IBM wrote to Jindal and implored him not to sign the a bill “that legally protects discrimination based on same-sex marriage status [and] creates a hostile environment for our current and prospective employees, and is antithetical to our company’s values.”