Over the weekend, Indiana’s Republican Governor, Mike Pence, insisted that the new Religious Freedom Restoration Act he signed into law week is just like the federal RFRA, enacted in 1993, and doesn’t permit discrimination cloaked in religion. This same claim–that Indiana’s RFRA and the federal RFRA are identical–is the basis for the conservative outcry that the media has the story wrong, and the Indiana law is merely intended to protect religious rights, rather than allow discrimination, particularly against LGBT people.
In his appearance on ABC’s This Week, Pence maintained that the new law “does not even apply to disputes between private parties unless government action is involved.” He insisted that the statutory language is the same as the federal RFRA, as well as one in Illinois that President Barack Obama supported as a state senator. As PolitiFact noted, though, “Pence is incorrect to say the language is the same.” What’s more, “[p]roponents of this law are pushing the measure as a way that businesses can seek protection ‘for refusing to participate in a homosexual marriage.'”
Unlike the federal RFRA, and state RFRAs in fact modeled on it, the Indiana RFRA appears to permit a religious freedom claim or defense to be used in suits between private parties. Such suits could include claims by, say, a lesbian couple denied service by a baker who refuses to make a cake for a same-sex wedding. The federal RFRA, in contrast, permits suits only when there is government action involved, such as in the Hobby Lobby case, where the plaintiffs challenged a government regulation requiring no-cost coverage of contraception in employer-provided health care plans.
As Micah Schwartzman, Nelson Tebbe, and Robert Tuttle explain at Slate, the entire purpose of the new law was to permit businesses, like caterers and photographers, to refuse service to same-sex couples. After Elane Photography case, in which a photographer in New Mexico was found liable under the state’s anti-discrimination law for refusing to provide services at a same-sex ceremony, states began to see efforts to pass laws like the one Indiana enacted last week:
Compare Indiana’s newly minted RFRA to the one assessed by the court in New Mexico. The Indiana RFRA departs from New Mexico’s RFRA and the federal RFRA—on which many other state laws are modeled. How? Indiana’s RFRA expressly provides that a person can assert a “claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”
This new statutory language is designed to ensure that a wedding photographer in Indiana would be protected if she discriminates against a same-sex couple, unlike the photographer in New Mexico who lost in court. The provision explicitly permits a private party, including a for-profit corporation, to challenge on religious grounds any claim of discrimination brought by another private party, even when the government is not otherwise involved the case. In other words, when Gov. Pence said that his state’s law is just like RFRAs in other states and would not apply to disputes between private parties without government action, he was simply wrong about the law and its effect on future discrimination. (emphasis in original)
The new law’s supporters, though, accuse its opponents of misapprehending both the law’s intent and the motivation behind it. Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, denies the law would be used to discriminate, calling the conversation around the new law “uninformed” and stemming from a “widespread ignorance of religious motivation.”
At The Federalist, Mollie Hemingway insists that the Indiana RFRA merely protects religious people from government imposing a substantial burden on their religious practice. To counter arguments that the Indiana RFRA was cooked up only to protect the beliefs of conservative Christians, Hemingway offers 10 cases litigated under the federal RFRA that involve mostly claimants of minority religions. The effect, of course, is to make opponents of Indiana’s RFRA look like intolerant jerks; after all, what kind of person would oppose the rights of the long-haired kindergartener, whose Native American religion mandated hair styles that conflicted with her public school’s grooming requirements?
Hemingway writes that “when Indiana passed the legislation last week, the media characterized it as nothing more than a bigoted anti-gay bill and celebrities and activists called for a boycott against the state,” and accused the media of being “highly uninformed about the topic.” Even though RFRAs have been in existence since 1993, she went on, ” no one can provide any evidence to substantiate the outlandish claims made against them.”
But few people are making “outlandish claims” about RFRAs in general. They are saying that the changes incorporated into Indiana’s RFRA represent a departure from the federal RFRA and the state laws that mirror it, because of the addition of the possibility of RFRA claims and defenses being raised in lawsuits involving private, not government conduct. As Hemingway herself admits, “RFRA simply allows religious people to challenge government activities that encroach on their beliefs. They have to show that the government action substantially burdens a religious belief that they sincerely hold. And if they prove all that, it falls to the government to show that the challenged action is justified as the least restrictive means of furthering a compelling governmental interest.” That is true of the federal RFRA. But it’s not of Indiana’s.