Clarifying Indiana’s RFRA: No, It’s Not the Same as Others

There have been some articles floating around about Indiana’s Religious Freedom Restoration Act that are highly misleading (as well as misleading comments on the matter from Governor Pence)—e.g., there’s an article in the Washington Post which points out that several other states have their own RFRA statutes, and there’s a federal RFRA as well. This is true, but it does not follow from the fact that two laws have the same name, or even that they share some language in common, that they are in fact similar. Indiana’s law is staggeringly different.

First, some background; In 1990, SCOTUS issued a landmark decision in Employment Division v. Smith, determining that the free-exercise provision of the first amendment does not provide religious exemption from laws of general applicability. Smith and Black were members of the Native American Church and had been fired from their jobs for having ingested peyote during a religious ceremony—they argued that they should be entitled to unemployment benefits as their having ingested peyote during a religious ceremony should be protected under the First Amendment, but the court determined it was not (effectively, nearly eliminating the Sherbert Test in the process). In 1993, Congress passed the Religious Freedom Restoration Act in order to reinstitute protections from religious discrimination which result from such (apparently) religiously-neutral laws (that is, prohibitions on drug-use may be religiously neutral, and yet have discriminatory differential effects nonetheless, as was apparent in Smith).

In 1997, SCOTUS decided City of Boerne v. Flores determining that Congress had exceeded its power in extending RFRA beyond the federal government to states, and so, many states began passing their own RFRA legislation in response to bridge that gap once more. Indiana’s law is the latest, but, again, that does not mean it’s the same as others by the same name. There are extremely important—and disconcerting— differences.

One significant difference is how the Indiana RFRA defines religious exercise. Section five reads, “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This is in stark contrast to how religious exercise is understood under federal law, where the exercise in question must be the result of a belief which is religious in nature (general understood as part of comprehensive doctrine dealing with issues of ‘ultimate concern’ or something similar) and sincerely held. Though sincerity is (sometimes, but) rarely questioned in religious freedom claims (by the court or by other litigating parties), the more narrow understanding of religious exercise prevents abuse of the law and pre-textual claims to religious belief.

Another significant difference is that in Indiana, unlike e.g., Illinois, there are no protections from discrimination based on sexual orientation or gender identity under state law. Some individual cities in Indiana do have such protections by way of city ordinances, but state law pre-empts local law when the two conflict. Since the law has not gone into effect yet, and consequently has not yet been tested, it is unclear whether the state courts would determine that protection from discrimination on the basis of sexual orientation constitutes a “compelling interest” of the government (or, depending on the case, what the ‘least restrictive means’ of achieving it would be), but, the lack of protection in state law means at the very least that it will be unclear to those who would claim such discrimination is religious exercise whether or not the law allows it (and some folks have already interpreted it to mean that it does). Potentially, the lack of such protections — and Pence’s refusal to institute them — could mean that it will be more difficult to demonstrate that preventing discrimination on the basis of sexual orientation is a compelling state interest.

Further, Indiana’s RFRA explicitly extends the notion of personhood for the purposes of religious exercise very broadly—perhaps unsurprising in the wake of Burwell v. Hobby Lobby, but, still troubling, especially when we consider the context of its definition of ‘religious exercise’: “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.”

There are other differences between Indiana’s recently passed RFRA and those that are in place elsewhere, but you get the point. This is not your ordinary RFRA, and the difference is dreadful.

UPDATE: I didn’t see this until after I hit post, but one Indiana lawmaker certainly appears to think that preventing discrimination on the basis on sexual orientation is not a compelling interest (but he also seems confused about the law in other ways).

13 thoughts on “Clarifying Indiana’s RFRA: No, It’s Not the Same as Others

  1. I didn’t do the in depth case research you did, but I saw the broadening and the retroactive application, along with the standard liability that republicans put in that prevents employees having any action against employers as a problem.

    The ^wink to the right (not even extreme, people back there just don’t really want to associate with homsexuals at all) is clear and businesses are already discriminating, kicking lgtb out.

    Policy, tone and message makes a difference. I fail to see how a Christian is a good christian if he turns out a visitor, BUT many so called Christians don’t mind hating. And you can’t tell me this isn’t for the republican base, Indiana is red, 86% white, and pretty conservative, with historic ties to the south.

    This leaves Indiana citizens open to abuse, and I don’t recommend visiting as you don’t even know if a hotel will put you up.

  2. I’m not a lawyer, so while the difference in language appears significant, I don’t have a sense for what it really means. There’s a lot of breathless hype on both sides that is short on specifics and I’m sick of everyone talking about wedding cakes. Can you give a few examples of actions that would not be protected under the Federal RFRA but would be under Indiana’s?

  3. Peter, it’s impossible for me to say right now because the law hasn’t been tested. For one, though, as I said in the update, it appears as though some Indiana lawmakers believe that it will provide the right for business to refuse to serve gay customers. Whether or not that’s how the courts would interpret the law if it challenged, it’s disconcerting that Indiana is willing to let it be tested in this way. That is, it’s disconcerting that they’ve passed a law which appears to legalize all kinds of horrible discrimination–discrimination which hasn’t been found legal in other states either because they lack a RFRA or because they have civil rights law which prevents it. For two, while I think it’s unclear what actions precisely this will legalize, it is clear that the conditions under which religious exercise claims will be considered are different (e.g., roughly, it’s enough to baldly assert religious belief, whether you’re an individual or a corporation), and that’s troubling in itself.

  4. “One significant difference is how the Indiana RFRA defines religious exercise. Section five reads, ‘As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'”

    The federal RFRA incorporates the same definition.

  5. Thanks Philodaria. The definition of “exercise of religion” originally in RFRA simply incorporated the Supreme Court’s jurisprudence. But, RFRA was amended in 2000. Since 2000, the definition has been identical to the one you quoted from the Indiana bill. It’s at 42 U.S.C § 2000bb–2 and 42 U.S. Code § 2000cc–5. You’re right, though, that federal courts still invoke the Supreme Court’s definition of ‘religion’ and its requirement that the belief be sincerely held. They also regularly hold that a religious exercise is protected even if not central to or compelled by a system of religious belief, though.

  6. Wait, that’s the 1993 text, not the amended version from after the 1997 SCOTUS decision–is it in there?

  7. I commented before I realized you had a follow up in moderation–thanks Andrew.

  8. Right, my main concern here is that there’s nothing in the Indiana state RFRA that refers to that jurisprudence in how we interpret what that understanding of religious exercise means.

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