Indiana’s governor signed the state’s version of the Religious Freedom Restoration Act (RFRA) into law this week, and if you get your information solely from memes, you either think this means the jack-booted government thugs have once more been driven back from the doorsteps of God-fearing Americans, OR that “Straights Only” lunch counters will be popping up on every corner. What is it actually about?
I’m going to argue that this law does not open up any new paths for Indiana businesses to discriminate on the basis of sexual orientation. You careful readers will note that this implies Indiana businesses can already discriminate on this basis. That is correct. It’s my contention that this law was passed as groundwork for a much larger, much more evil project. Let’s get to it, shall we?
I think it’s important for you to know that there’s a version of this at the federal level, as well as in the majority of states (30). It’s the differences between Indiana’s law and the federal version that merit our concern, dude. So I’ll explain the federal RFRA, then the differences between that and Indiana’s new RFRA.
The federal RFRA says, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless in furtherance of a compelling government interest. A compelling government interest is something like, say, preventing racial discrimination. Remember this; it becomes important later.
That sounds like it was covered in, like, the Constitution, right? But not clearly enough. What the Constitution covers is laws about religious activity; what it‘s unclear about is laws that are meant to be generally applicable, but end up affecting religious activity as a side-effect. One example is the ban on peyote use. That was supposed to ban peyote generally, for everyone–it wasn’t meant to target any religious activity. But, obviously, it did, in effect, substantially burden some Native Americans’ exercise of religion. That seems to go against the spirit of the Constitution, right? So, RFRA clarifies that even general laws have to pass strict scrutiny for burdening a person’s exercise of religion.
Part of the federal RFRA was struck down a few years later, because it was deemed to be an overreach to make this applicable at the state level. Many states (30) subsequently passed their own versions of RFRA. What makes Indiana’s RFRA different? Comparing the language myself, and reading what other folks say (references linked), I think there are at least three major differences:
1) First, Indiana’s law has a broader definition of “person.” It defines a person as an individual, a religious organization, or, here’s the fun part:
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. [emphasis mine]
In the Hobby Lobby case, it was held that “closely held” corporations were “persons” protected under the federal RFRA. Indiana’s law doesn’t seem to limit it to closely held corporations, but the Hobby Lobby case might not limit it to that, either. Josh Blackman argues, in an excellent post about this, that the Hobby Lobby case doesn’t necessarily preclude a situation where a larger corporation might be able to invoke the federal RFRA. So, it might be that Indiana is just codifying something that’s already implied in the federal law. Either way, it’s creeping me out. If I can’t kick something in the balls, it’s not a person, dammit.
2) Second, Indiana’s law says that you can assert RFRA as a defense in court even if the government isn’t a party to the proceedings. The federal version doesn’t allow that. Now, think about what that means: let’s say a wedding cake company refuses to make a cake for my same-sex wedding, so I sue the company. Ostensibly, under Indiana’s RFRA, the company could claim protection of that refusal on the grounds that the court’s finding in my favor would substantially burden the company’s exercise of religion. That doesn’t mean I’d have to pay the company any damages for suing or anything. The law only allows for redress to be collected from the government. I would just lose the case.
3) Finally, Howard Friedman points out that Indiana’s law allows for the protection to be invoked when a person’s exercise of freedom is likely to be burdened by a government action; not just when it has been burdened. Blackman doesn’t think that’s a big deal, in that it doesn’t seem to add anything beyond the federal law. But I disagree.
Here’s my analysis. What Indiana’s RFRA does not say: that businesses can refuse service on the basis of religious objection to same-sex marriage. What it might open the door to: a business successfully defending against a discrimination suit under RFRA. However, you’re already allowed to discriminate on the basis of sexual orientation in Indiana. This law adds nothing new in that arena. But that is precisely why this law is so dangerous!
It’s been consistently held that the government has a compelling interest in preventing discrimination on the grounds of race, gender, disability, etc. (remember this?). So, if your company had a religious belief against interracial marriage, you wouldn’t be protected under RFRA for denying service on those grounds, because the state has a compelling interest in protecting against racial discrimination. There is no such compelling interest upheld in Indiana (or federal) law in protecting against discrimination on the basis of sexual orientation.
If you’re still with me, you realize that means it’s already legal for companies to discriminate on the basis of sexual orientation in Indiana. It’s not a protected class. This RFRA would only come into play if someone decided they wanted to bring a case on that basis. Why this bill at this time, then?
I believe this is a preemptive strike against attempts to pass an anti-discrimination law about sexual orientation in Indiana.
I drew this conclusion from watching what happened in Georgia. Georgia’s recently proposed version of RFRA failed because someone attached an amendment with anti-discrimination language. No one would vote for it with that amendment. Why wouldn’t you vote for RFRA if all you *really* wanted was to make sure companies could exercise their religion? It’s pretty disingenuous for lawmakers to say a RFRA like this has no connection to discrimination against homosexuals. Indiana’s RFRA managed to escape such an amendment, so here we are.
My speculation is that this law will be used as a reason not to make sexual orientation a protected class under strict scrutiny requirements. I say that because of that third major difference between Indiana’s RFRA and the federal RFRA. Let’s say a law is proposed to outlaw discrimination against homosexuals in the workplace in Indiana. Under this law, couldn’t a company claim that this is likely to substantially burden their free exercise of religion? I think that’s entirely possible, and that’s the larger project I think this bill serves.
RowlandDeep 
If they won’t make a cake for me then why can’t I just go down the street to the next baker who will be happy to make me one? For her the law just remove the competition. Why not let economics deal with it. Religion is one thing but loss of money another.
The government has an overwhelming interest in protecting against discrimination on the basis of race, gender, and disability. That means your religious beliefs are trumped by the federal laws against discrimination in those cases. You’re not currently allowed to discriminate against interracial couples, for example, who want a wedding cake. I believe that sexual orientation should also be a protected group. The problem, Wyatt, isn’t about a damn cake. It’s about being recognized as a fully equal citizen under the law deserving of equal protection. The daily humiliation LGBT folks face due to no choice of their own is personally degrading, inhuman, and unjust. Bakers and other business owners know when they open a business that they aren’t allowed to discriminate on the basis of race, gender and disability when they open a business, and it should include LGBT folks. If you want to discriminate, don’t start a business; start a church.
Could it not be (and has it not already been) successfully argued that discrimination on the basis of sexual orientation is just a subset of discrimination based on gender? If I were in need of services for a same-sex wedding and were facing discrimination, and that discrimination would not be occurring if I were a different gender, as then it would be a heterosexual couple getting married, isn’t that the same thing as gender discrimination? What are your thoughts on this?
(Thanks for reading and unpacking the Indiana law so I didn’t have to, by the way!)
Thank you for the comment! You know, that’s a really good question. Suzanne Pharr argues that homophobia is about sexism, not sex. Sexism requires and enforces strict adherence to rigid gender roles, and those who deviate are punished. So, in my view, discrimination on the basis of sexual orientation is identical to discrimination on the basis of gender. Now, would that be something one could argue in court? I doubt it would gain much traction because same-sex marriage opponents primarily argue that this is about religion, and it seems we have to meet them on that battlefield. But that makes me wonder if anyone has tried that argument…I’ll have to look into it! Thank you for the thought-provoking idea!
I am an attorney, and I have been appalled at the depths of negligent/intentional mis/disinformation concerning Indiana’s RFRA and RFRA laws in general. I have to commend you, Jen, on a fairly balanced and accurate analysis of RFRA. Yes, Indiana defines “persons” to include SOME entities (corporations, LLCs, partnerships, etc.) This is where actually reading the LAW (rather than reading the opinion about the law from someone who has NOT read the law) is helpful. The full text of Indiana’s RFRA (before the “fix” can be viewed here: https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197
Section 7 of Indiana RFRF states: “Sec. 7. 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.” Note the requirement of “control and substantial ownership” by individual(s) who exercise “practices that are compelled or limited by a system of religious belief.” That will rule out most businesses. In regard to the “expansion” of the definition of “person,” Indiana’s RFRA follows the federal RFRA, as applied by the Supreme Court in the Hobby Lobby case http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf (See pages 19 – 31 of the decision, pages 25 -37 of the PDF)
Second…extending the POTENTIAL protection of one’s religious freedom (there is no guaranteed or unqualified protection in any RFRA) is simply a logical extension of the protections that were intended under the original federal law. Not all “violations” of a law are brought to a court by a government. Why should a “person” be denied the potential protection of RFRA if a person is sued by a government, but not if a person is sued by another individual for an alleged violation of a law?
Third…although Jen correctly includes the important qualifier, under the second point, that the exercise of religion must be SUBSTANTIALLY burdened (which is included in the federal and Indiana RFRAs), Jen omits that important hurdle in her discussion in the very next paragraph (“Howard Friedman points out that Indiana’s law allows for the protection to be invoked when a person’s exercise of freedom is likely to be burdened by a government action; not just when it has been burdened.” Both sections 8 and 9 of the RFRA require a person seeking the protection of the law to show that his or her exercise of religion has been or is likely to be SUBSTANTIALLY burdened. But even if that hurdle is jumped, it is STILL possible that the person whose religious freedom is allegedly being substantially burdened to lose if it can be shown that the state has a “compelling governmental interest” and the law substantially burdening the exercise of religion “is the least restrictive means of furthering that compelling
governmental interest.” See section 8 of the law. As an ironic aside, Connecticut’s RFRA DOES omit the requirement of a “substantial” burden, a mere showing of a “burden” is sufficient. http://law.justia.com/codes/connecticut/2012/title-52/chapter-925/section-52-571b/ So, if one hates Indiana’s RFRA, one should LOATHE Connecticut’s RFRA, which grants even broader protection to religious freedom than the “bigoted” Indiana law! Someone needs to tell the ignorant Governor of Connecticut (who banned travel by government employees to Indiana because of the passage of the Indiana law) that he should also banish himself and all other Connecticut government employees from his even more “bigoted” and “discriminatory” state!
The irresponsible “reporting” about the Indiana RFRA was that it was a “license to discriminate” against and to “refuse service” to LGBT persons with impunity. That smear had no basis whatsoever in the words of the law. It was simply a “narrative” to gin up opposition to Indiana’s RFRA. RFRA furnishes no protection to any person who would discriminate against or refuse service to anyone on the basis of who they ARE (gay, black, female, etc.). However, it MIGHT (or might not) provide a defense to a discrimination claim in RARE cases based upon what the customer asks or demands a business to DO (beyond merely serving a customer). To my knowledge, there have been ZERO cases where a court has upheld a defense of refusing to make a cake, provide flowers, etc for the proverbial gay wedding. But what if a gay couple asks a Muslim baker to make a cake with the following written on top: “F**k Mo******d! We’re married!” Should the Muslim baker be successfully sued for “discrimination” in such a case, or would a defense under RFRA be appropriate in that case?
The point of RFRA (which has much broader concerns beyond issues related to sexual orientation and discrimination, as the Hobby Lobby case makes clear) is not to grant special protections to persons who merely assert a religious objection to complying with a law of general applicability. IF one reads the law (that is a big “if”), it is clear that the law merely provides an OPPORTUNITY to have a court balance the legitimate interests of a state against the rights of persons to exercise their religious freedom. In the vast majority of cases, the state (or the person asserting a right under state law) will win, but in certain RARE cases, a court will uphold the defense of the person asserting that a state law “substantially burdens” his or her exercise of religion.
Or should there be NO case whatsoever in which a state law should yield to a person’s right to religious freedom?