Indiana’s RFRA: Closeting the Cause
Hailing from Indiana, I can tell you that Hoosiers take pride in a few important things:
- Our knowledge, love, and history of basketball
- Hoosier hospitality
- The mantra of “Keep it simple, stupid.”
The first two are pretty widely known, while the last one on the list is more of an internal motto. The essential premise is this: when you’re presenting an idea, keep it plain and clear. Don’t add a bunch of fluff; just give us the meat and potatoes.
Indiana’s Religious Freedom Restoration Act, which has dominated many people’s news feeds for the past week, has been neither plain nor clear. Supporters and opponents of the bill claim that the other side is clearly missing their point, leaving everyone in a daze, and accusing the other side of misconstruing their thoughts.
Laws like the RFRA appear to be crafted in goodwill with the goal of ensuring that governments do not interfere with an individual’s religious liberty. Each of them is essentially the same. Stephanie Wang of the Indianapolis Star provides a good summary of what Indiana’s version says. “The government cannot intrude on a person’s religious liberty unless it can prove a compelling interest in imposing that interest and do so in the least restrictive way.” For those who read my last post, this is nearly identical to the Religious Land Use and Institutionalized Persons Act (RLUIPA), which could potentially help the New Life Evangelistic Center keep the city of St. Louis from closing down their homeless shelter. Instead of applying to land use and institutionalized individuals, RFRA’s apply to every individual.
RFRA’s are also nothing new. President Bill Clinton signed one into federal law in 1993, which received bipartisan support. Nineteen other states have also passed them all the way from Connecticut and Rhode Island to Louisiana and Mississippi. Still, not all supporters of RFRA’s can be painted with the same brush. For instance, in the Supreme Court case Burwell v. Hobby Lobby, Inc., 19 members of Congress who were strong advocates of the federal RFRA wrote an amicus curiae brief stating, “We could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA.” Many of these same lawmakers have also publicly expressed regret for having supported the laws in their respective states.
Another important nuance to the RFRA is that state RFRA’s are each different. Some differences include whether the government must convey a “substantial burden” or merely a “burden” (Indiana’s includes the word “substantial”). Some specify whether or not private businesses are entitled to this same protection (Indiana’s does not and leaves it open to interpretation of judges). Yet, the largest differences apply to who is considered a protected class and the intent of the bill.
Although race and gender are some of the protected classes within Indiana, sexual orientation is not (though it is in Indianapolis and several other cities). Illinois is one state that has an RFRA, but by them including sexual orientation as a protected class, it is extremely unlikely that their RFRA would be a tool for discriminating against gays and lesbians.
However, an even larger factor is inherent in the law. New Mexico has an RFRA similar to Indiana’s and their supreme court heard a case where a photographer refused to work at a lesbian couple’s commitment ceremony. New Mexico Supreme Court ruled in favor of the lesbian couple, but what was paramount in the decision was the intent of the legislature as Justice Richard Bosson wrote in the majority opinion: “The New Mexico legislature has made it clear that to discriminate in business on the basis of sexual orientation is just as intolerable as to discriminate based on race, color, national origin, or religion.” The state of Washington had almost an identical situation last year, though it concerned a florist instead of a photographer. Proponents of the law have noted that courts are not allowing businesses to discriminate, but it is important to note that both instances show that the intent of the law was not to allow such practices to take place.
So, what was Indiana’s intent? That’s the one million dollar question, which either no one can answer or no one is willing to answer. Advance America is a pro-family and pro-church interest group within the state, which offers testimony on proposed bills within the state of Indiana. Stating why they thought this bill would help, they wrote “Christian bakers, florists and photographers would not be punished for refusing to participate in a homosexual marriage!”
Indiana Governor Mike Pence went on ABC’s “This Week” in hopes of “clarifying” all of the misinformation that has been circling this issue. However, when asked about this specific quote and whether or not this law would allow that, Governor Pence did not answer the yes or no question. The host of the show, George Stephanopoulos, asked this yes or no question six times and each time Governor Pence circled the question without an answer. Lastly, Stephanopoulos asked, “Do you think it should be legal within the state of Indiana to discriminate against gays and lesbians?” Once again, the Governor did not provide a clear yes or no answer.
State legislators held a press conference on Monday saying that they plan to present legislation to clarify the language of the bill. Yet, they also expressed that they do not intend to repeal the law and they don’t wish to add anywhere that discrimination against homosexuals would not be permitted.
A coalition of professors from law schools at Columbia University, Georgetown University and Indiana Universities advised state legislators, who were hoping to clarify the real meaning of the law, on the legislation’s likely outcomes. Their advice was that “the broad language of the proposed RFRA will more likely create confusion, conflict and a wave of litigation that will threaten the clarity of religious liberty rights…” I believe the legislators know that they shouldn’t be this broad with whatever they’re trying to pass; it’s in a Hoosier’s DNA to be plain and specific. Therefore, if we’re trying to gauge their intent, the greatest sign could be their non-specificity.