David Giffin over at the College Conservative put together an article on the Six must know facts about Indiana’s Religious Freedom Law. David, has great insight on first amendment law, especially the religious establishment clause in our Bill of Rights.
Last week, Indiana committed a human rights atrocity by signing a law that will “enable anyone to discriminate against anyone else, with no fear of government intervention or punishment, merely by citing their sincerely held religious beliefs.” The outcry from gay rights groups has been overwhelming, and gay celebrities like former Star Trek star George Takei and NBA player Jason Collins have also spoken out against the new law. Major entertainment and business organizations, including the NCAA, multi-million dollar gaming convention GenCon, cloud computing giant Salesforce, and popular business reviewing platform Angie’s List, have all either voiced concerns about the law’s impact on LGBT persons or have openly threatened to pull their business operations from the state. Christians have also come out overwhelmingly against the law, as it contradicts biblical principles…
… At least, that’s the story that you’ve heard if you’ve been anywhere on social media this past week. While gay rights leaders have successfully framed Indiana’s Religious Freedom Restoration Act as hurting gay rights, just as they did with Arizona’s law last year, a lot of important facts about Indiana’s law–what it actually says, and what it will do–have been caught up in the politicization of the issue. As the Washington Post noted, Indiana has become “the battleground over religious freedom that Arizona never was.”
Here are six facts you need to know to truly understand what is going on with Indiana’s RFRA.
1) RFRA laws broadly target free exercise, not just same-sex marriage.
SB 101, the Indiana law everyone is up in arms about, was passed on the model of the federal Religious Freedom Restoration Act. Effectively, RFRA was designed to broadly protect religious practices and beliefs by requiring government entities to satisfy the compelling interest test when a law that they enact might infringe on a religious practitioner’s beliefs. The compelling interest test is a part of strict scrutiny review, the highest form of judicial review for a legal issue. Government entities must demonstrate that they have a compelling and legitimate interest in passing the law, and that the law was designed to infringe on that liberty using the least restrictive means possible.
RFRA was passed in 1993 to restore the compelling interest test for First Amendment free exercise issues that had been done away with by the Supreme Court in Employment Division v. Smith. In Smith, the Supreme Court ruled that religious beliefs were not exempt from “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [the] religion prescribes (or proscribes).” While there was already an understanding that religious beliefs did not exempt someone from criminal laws, Smith radically reduced the government’s burden of proof in religious freedom cases, lowering the bar to the lowest level of judicial review, rational basis.
2) RFRA laws don’t guarantee an automatic win for religious believers.
Effectively, RFRA creates a legal framework for people to rely on when their religious beliefs are negatively impacted by a law. The federal RFRA sets forward that a person who has standing “may assert [the] violation [of his or her religious beliefs] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Though a small number of other states, particularly Kansas, have passed other laws where religious interests always win when it comes to gay marriage issues, RFRA laws based on the federal model merely ensure that the religious party can assert their beliefs in court.
As Douglas Laycock, a law professor at the University of Virginia, explained in the context of Arizona’s attempt to modify its own RFRA laws (an attempt that Governor Jan Brewer vetoed under a similar massive wave of protests), simply creating a legal framework is far from an automatic win:
…[N]othing in the amendment would have said who wins… SB1062 did not say that businesses can discriminate for religious reasons. It said that business people could assert a claim or defense under RFRA, in any kind of case (discrimination cases were not even mentioned, although they would have been included), that they would have to prove a substantial burden on a sincere religious practice, that the government or the person suing them would then have the burden of proof on compelling government interest, and that the state courts in Arizona would make the final decision.
Consequently, many religious believers find themselves on the losing end of RFRA claims when a government entity’s compelling interests in maintaining a policy are upheld by the courts. One prominent example is in the 2014 case Priests for Life v. U.S. Dept. of Health and Human Services, where Catholic church groups were unable to convince the D.C. Circuit Court that the Obamacare exception requiring their groups to file paperwork expressing their opposition to contraceptives still made them morally complicit in providing birth control. Another example is the 2008 case Navajo Nation v. U.S. Forest Service, in which the Navajo tribe failed to convince the Ninth Circuit that the Forest Service’s use of artificial snow made from recycled water on a mountain their tribe believed was sacred would spiritually taint the mountain and burden their religious practice.
3) Indiana’s RFRA law is almost identical to the federal RFRA.