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.