Clarifying Indiana’s RFRA: No, It’s Not the Same as Others March 31, 2015
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).
We’re kicking off what we hope will be an extremely useful series of guest posts today from amanforsomeseasons. I’ll let him introduce himself.
As a regular reader and a friend of the Feminist Philosophers blog, as a former philosopher and current lawyer (yes, I know), and as a feminist and an interested observer of events that affect women’s issues, I am pleased to be given an opportunity to provide some legal commentary around many of the subjects discussed on this blog.
I have recently enjoyed a number of lively and stimulating discussions with a regular Feminist Philosophers blogger, particularly about how universities are handling – and, in some cases, failing to handle – allegations of sexual harassment and discrimination. One of the major themes of our discussions has been why some universities opt to deal with these issues publicly, often to their detriment, while others decide instead to whitewash the problem quietly.
I enjoyed hearing the perspective of someone who sees frequent and startling examples of the latter solution; she was very interested to hear my legal perspective on both. She said that the Feminist Philosophers’ readership, too, might be interested to get a lawyer’s take on these things, and so she has invited me to post a few entries. Depending upon the reception, I may do more than a few (but hopefully not less).
I welcome comments and have asked that commenting for my posts remains open; I will do my best to engage with the commenters. And now the fine print:
- Please understand that in blogging here, or in responding to comments, I am writing for educational purposes only, to give general information and a general understanding of the law. I do not intend to provide specific legal advice about your individual circumstances or legal questions. You acknowledge that neither your reading of, nor posting on, this blog establishes an attorney-client relationship between you and me. My posts should not be used as a substitute for seeking competent legal advice from a licensed attorney in your state. Readers of this information should not act upon any information contained on this website without seeking professional counsel. The transmission of confidential information via Internet email is highly discouraged.
Thank you. I am looking forward to our discussions.
Following its investigation, OCR determined that the Law School’s current and prior sexual harassment policies and procedures failed to comply with Title IX’s requirements for prompt and equitable response to complaints of sexual harassment and sexual assault. The Law School also did not appropriately respond to two student complaints of sexual assault. In one instance, the Law School took over a year to make its final determination and the complainant was not allowed to participate in this extended appeal process, which ultimately resulted in the reversal of the initial decision to dismiss the accused student and dismissal of the complainant’s complaint.
During the course of OCR’s investigation, the Law School adopted revised procedures that use the “preponderance of the evidence” standard for its sexual harassment investigations and afford appeal rights to both parties, in compliance with Title IX. The Law School also complied with the Title IX requirements relating to the designation of a Title IX Coordinator and publication of its non-discrimination notice.
Notre Dame appeals to SCOTUS over ACA October 8, 2014
The University of Notre Dame has appealed to the Supreme Court, requesting that it require the lower courts reconsider its case against the HHS mandate in the light of the Hobby Lobby decision. Notre Dame lost its previous appeal, in which three anonymous students filed an intervening suit.
One unique feature of the legal complaint that Notre Dame is asking be reconsidered is that it asserts government regulation which treats religious universities as distinct from houses of worship violates the university’s religious belief in the unity of the Church. In its complaint, the university writes,
The U.S. Government Mandate also improperly attempts to sever Notre Dame from the Roman Catholic Church. Notre Dame sincerely believes in the unity of the Catholic Church, including that Catholic educational institutions, especially Notre Dame, are by definition the “heart of the church” or Ex Corde Ecclesiae. Notre Dame’s mission is just as central to Catholic faith and life as the mission of Catholic houses of worship. Yet, the U.S. Government Mandate would limit the definition of “religious employers” to houses of worship, attempting to sever the Church from its heart and to divide the unified Church. The U.S. Government mandate would thus turn the broad right to Religious Exercise into a narrow Right to Worship.*
Irrespective of what one thinks about religious freedom, women’s rights to healthcare, or potential violations of the establishment clause, this is a troubling argument. If religiously-affiliated universities could not be treated as distinct from houses of worship without violating religious exercise rights, then effectively, students at those universities could not be protected from sexual misconduct, harassment, or discrimination by Title IX as Title IX is not applicable to houses of worship (nor could it be).
*It is worth noting that Notre Dame has argued in court in the past (cf. Laskowski v. Spellings and Am. Jewish Cong. v. Corp. for Nat’l. & Cmty. Serv.) that activities such as the provision of healthcare coverage benefits do not constitute religious exercise.
Yes means yes bill in California August 31, 2014
On Thursday, the California state legislature voted to replace the “no means no” standard for sexual consent on college campuses with the affirmative “yes means yes” definition. Under this standard, silence or lack of resistance is not considered a legally acceptable way to convey consent. Inebriation will also not be considered an acceptable defense. Gov. Jerry Brown has until September 30 to sign the bill. If he does, all colleges receiving state funding would have to adhere to “yes means yes.” Campus assault advocates have been pushing for such reform, arguing that “ no means no” unfairly burdens victims. However, many worry that “yes means yes” is a vague standard.
Rapist sentenced 361 days in order to avoid trial August 12, 2014
From the Star Tribune, man who confessed to raping two girls, 13 and 15, was giving a plea-deal with a sentence of the time he had already served — 361 days. The county attorney, James Backstrom, said this will allow for avoiding potentially traumatizing the victims by requiring them to testify.
The new Director of Public Prosecutions in England & Wales, Alison Saunders, has said juries should be warned about myths and stereotypes associated with rape BEFORE they hear evidence:
Ms Saunders said: “There is lots of really good practice now, so the judge gives the jury directions on myths and stereotypes. But, what normally happens is that they’re given at the end of the case when the jury is just about to go out and deliberate.
“All of us are human – you’re going to hear the evidence, you’re going to make a judgement and then you’re told to set your judgement aside and [are told by the judge] these are the things you should be taking into account – actually it’s better to hear that at the beginning.”
It’s an interesting article, based on an interview with Alison Saunders and Martin Hewitt, the Association of Chief Police Officers’ lead on adult sexual offences.