WASHINGTON, D.C. - The backlash to Indiana’s new Religious Freedom Restoration law is growing but the bill’s opponents are blaming the wrong Hoosier. Indiana-born Supreme Court Chief Justice John Roberts’ role is far more important than Governor Mike Pence’s, even though Pence signed the law.
You probably have heard that 19 states besides Indiana already have “a” Religious Freedom Restoration law and that all those laws “are based” on the federal Religious Freedom Restoration Act (RFRA) passed by Congress and signed by President Bill Clinton in 1993. That is true only loosely, only if the words above are in quotes.
Indiana’s RFRA law has new and different language than the other statutes and the federal law. And it has different legislative intent.
States began passing their own RFRA laws only after 1997, when the Supreme Court ruled that the 1993 federal law did not govern state laws. States wanted to “protect” religious liberty just as the feds had (more on that later).
But all of that came before Chief Justice Roberts ruled last summer in Hobby Lobby v. Burwell. That was the famous case that ruled that a business, Hobby Lobby, was being burdened in its free expression of religion by a provision of the Affordable Care Act (Obamacare to its foes) requiring coverage for some kinds of contraception. This was a revolution in defining religious freedom in this country.
The Indiana law is the first state RFRA to pass after Hobby Lobby, and it actually codifies its jurisprudence in two ways.
First, it explicitly states that for-profit businesses – and not just individuals – have a right to the free exercise of religion. As The Atlantic points out, the federal law has no such language, nor do 17 of the 19 existing state RFRA statues. In fact, Louisiana and Pennsylvania exclude businesses from being protected by RFRA.
Second, the Indiana law makes explicit that for-profit business’ free exercise of religion is a defense against discrimination claims made not just by the government but also by private parties, something that is murky in the federal law.
So the claim that Indiana’s new law is just the same as a bunch of existing laws is off base.
That claim is also disingenuous and phony in a much simpler way, and so is the claim that that RFRA laws are not being used to try to justify discrimination.
To get at this, you need to go backwards a bit.
The plain language, common sense understanding of the constitutional right of religious free expression in our history has been that the government can’t establish religion and shove it down our throats and that the free expression of individuals and religious organizations shouldn’t be interfered with.
But there were conflicts. The one that shapes current law came to the Supreme Court in the 1990s in Employment Division v. Smith. In that case, a Native American who worked for the state of Oregon was sacked and denied unemployment benefits because he failed a drug test. He had used peyote in a traditional religious ceremony. The Supreme Court ruled that the freedom of religion defense did not apply and didn’t trump the state’s drug regulations.
That created a big controversy and the federal RFRA was passed in response in 1993. The idea was that an individual should not be prohibited from exercising sincere, long-held religious beliefs unless there was some giant, compelling state interest involved.
But there were some warnings that RFRA interpretations could go in other directions. Marci Hamilton, a professor of law at Cardozo School of Law, recently wrote:
“What few people know, especially those pushing the state RFRAs, is that the federal RFRA was not born out of some magnificent re-incarnation of the founding of our country. The Mom and Apple Pie part of the RFRA history is Discrimination and Baloney. In fact, it was motivated in no small part by the Christian Legal Society, and other conservative religious groups, seeking to overcome state fair housing laws, which were making it more difficult to pick and choose tenants based on faith. These believers did not want to have to rent apartments to unwed mothers, unmarried couples, and, later, same-sex couples. Thus, the RFRA movement can be traced from a religiously-motivated desire to discriminate. So it should come as no surprise that a statute that began with discriminatory motives has transmogrified into a tool for further discrimination.”
Essentially, the concept of religious freedom sanctified by Chief Justice Hoosier is intended to protect the right to worship and believe as you wish, but also the right never to have to dirty your hands by doing anything against your beliefs while doing business or in other public activity.
The focus of that conflict in Indiana happens to be gay marriage. The new law, many believe, would allow a business, say a catering company, to refuse to serve a gay wedding.
But that is just one potential avenue where this expansive new concept of religious freedom will conflict with other rights and claims. After all, in Hobby Lobby the Supreme Court said that company didn’t have to provide insurance coverage for women’s birth control because of its religious beliefs.
Supporters of the Indiana believe all these arguments are mostly theoretical and that there will be no great boom in litigation or discrimination. Indiana university law professor Daniel Conkle wrote this in the Indianapolis Star:
“In any event, most religious freedom claims have nothing to do with same-sex marriage or discrimination. The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.”
At this point, the arguments may indeed be abstract. But by far the loudest and most influential protests over the Indiana law have come from businesses, a rather practical group. Maybe that is a intentional tactical move since business might have more credibility and pull on this issue than politicians and advocacy groups.
In any event, the political fight is anything but theoretical now, and it’s more intense.
Update: Kim Colby of the Christian Legal Society says that the group's position was described inaccurately in the quote from Marci Hamilton. Colby wrote:
“Christian Legal Society is proud to have been a key player in the broad RFRA Coalition composed of 68 groups, including liberal groups like the ACLU, Americans United for Separation of Church and State, American Jewish Committee, Americans for Democratic Action, and B’nai B’rith. The RFRA Coalition worked from 1990 until 1993 to pass RFRA. The sole motivation was to restore religious liberty for all Americans after Justice Scalia’s opinion in Employment Division v. Smith, 494 U.S. 872 (1990), which severely restricted the strong constitutional protection of religious liberty previously championed by liberalicons, such as Justice Brennan. RFRA continues to provide vital protection for all Americans’ religious liberty.”