What Is That Indiana Law Everyone's Talking About?

RTR4VA9W
Demonstrators protest the controversial religious freedom bill recently signed by Indiana Governor Mike Pence, during a rally in Indianapolis on March 28, 2015. REUTERS/Nate Chute

What is SA101, a.k.a. the Indiana Religious Freedom Restoration Act?

Broadly speaking, Indiana's Senate Bill 101, also known as the Religious Freedom Restoration Act (RFRA), is designed to protect the free exercise of religion, as guaranteed by the U.S. Constitution and the constitution of the state of Indiana.

The Indiana Legislature passed SB101 by a 40-10 vote on March 26. Governor Mike Pence signed the bill into law the same day, and it goes into effect July 1.

Specifically, the law does several things. First, it creates a two-pronged test for circumstances where the state government may limit a person's right to free exercise of religion: it "(1) is in furtherance of a compelling governmental interest; and (2): is the least restrictive means of furthering that compelling governmental interest."

In other words, the state of Indiana can interfere with someone's right to exercise his or her religion only if it has a very good reason for doing so (the "compelling governmental interest" part), and it does so in the least inconvenient (or "restrictive") way possible.

This part of the law is not particularly controversial. Similar tests exist in every state RFRA and the federal RFRA signed by President Bill Clinton.

The law also allows "a person" sued in Indiana to claim his or her sincerely held religious belief as a defense.

So why was this law passed? Who is it intended to help?

In theory, the law is supposed to give some legal protection to those who think the state is interfering with their right to practice their religion freely. Right-wing magazine The Federalist actually has a pretty good list of people who have been helped by such laws in the past (but beware, there are a few misleading examples). A few highlights from federal cases, outside of Indiana:

  • In 2009, the 5th U.S. Circuit Court of Appeals ruled that a Texas school's requirement that a Native American boy wear his long hair in a bun or in a braid tucked into his shirt violated his rights under Texas's Religious Freedom Restoration Act.

  • In 2015, the U.S. Supreme Court ruled an Arkansas prison violated the rights of Gregory Holt, also known as Abdul Maalik Muhammad, a Muslim prisoner, under the Religious Land Use and Institutionalized Persons Act when it forced him to shave off his half-inch beard, which he grew in accordance with his religious belief.

  • In 2008, the 5th U.S. Circuit Court of Appeals ruled that the city of Euless, Texas violated the rights of José Merced, a Santeria Oba Oriate, or priest, when it prohibited him from keeping and slaughtering four-legged animals—goats, in this case—in a residential neighborhood. Animal sacrifice is common in Santeria.

Those three are examples of successful appeals to RFRAs—not all those who say the state is violating their right to religious exercise win. But Indiana's law will give those who do want to make those claims better cases.

I've heard the law is anti-gay. Is that true?

Yes and no. The law does not explicitly make discrimination against LGBT people legal, but it may have the effect of doing so, among many other effects.

Let's say, for example, an Indiana baker refuses to make a wedding cake for a gay couple on the grounds that his religion tells him homosexuality is immoral. The gay couple could sue the baker for discrimination. The baker could then use his sincerely held religious belief as a defense in that suit. And the new Indiana law makes it more likely the baker would win that suit. Here's why:

When deciding civil rights cases, state courts often look to a state's civil rights law and what protections it provides citizens of that state. All 50 states and the federal government provide protection against discrimination on racial or ethnic grounds, for example. A state court can therefore easily surmise that preventing racial or ethnic discrimination is in the state's interest. However, some states, Indiana among them, do not provide protection against discrimination on the basis of sexual orientation, although some Indiana municipalities, such as Indianapolis, offer such protection. Thus, a court could reasonably infer that preventing discrimination against LGBT people is less important to the state of Indiana than respecting Hoosiers' rights to exercise their religion.

But don't lots of states have RFRAs? And doesn't the federal government have one?

Yes, 19 states and the federal government have RFRAs. But Indiana's is the most sweeping law of its kind, says Matt Anderson, a civil rights trial lawyer in South Bend, Indiana. "A lot of states limit how you can use [religious expression] as a defense," he says. "Texas, for example, says you can't use it as a defense in a civil rights case." Indiana places no such limit in its RFRA.

Nor does it limit the parties to such a suit. Why is this important? Most RFRAs require the government to be party to a suit in order to invoke religious expression as a defense; only Texas's does not. This means that, in a suit between two private entities, the defendant cannot use his religious belief as a defense, because the government is not party to the case. This is precisely what happened in the recent case of Elane Photography v. Willock, in which the New Mexico Human Rights Commission fined Elaine Huguenin $7,000 for refusing to photograph a gay couple's wedding.

Huguenin cited New Mexico's RFRA as a defense, arguing that to photograph the couple would have burdened her free exercise of religion. But the New Mexico Supreme Court disagreed, ruling that, because the government was not party to the suit, the studio could not turn to the state's RFRA for protection. Indiana's law, perhaps in response to Elane, specifically says that the government need not be party to a suit for a defendant to make a free exercise defense.

Does this have anything to do with that Hobby Lobby case where a company didn’t want to comply with Obamacare rules?

Kind of. Indiana's RFRA is the first post-Hobby Lobby law of its kind and borrows important language from that case. Burwell v. Hobby Lobby Stores, Inc. was a landmark 2014 case in which the U.S. Supreme Court extended First Amendment free exercise protections to "closely-held" for-profit corporations, in this case a large chain of specialty stores led by conservative Christians who didn’t want Hobby Lobby to have to participate in some of the family planning provisions of Obamacare.

Indiana's RFRA's definition of a person is even broader than the one the Supreme Court set out in Hobby Lobby. According to Indiana, a person (for the purposes of appealing to the RFRA) can be any of the following: an individual, an organization, a religious society, a church, a body of communicants, a group organized and operated primarily for religious purposes, a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association and more. In other words, there’s more of a welcome sign to claim religious discrimination, but there’s no certainty that Indiana citizens would rush to use a religious pretext to deny services to gays. And without a state anti-discrimination statute that includes LGBT citizens, many Indiana business owners are free to do so even without RFRA.

Proponents of the law argue there's nothing new here. Mat Staver, founder and chairman of Liberty Counsel, says, "The Indiana RFRA is virtually identical to every other RFRA that's passed in 19 states and the federal Religious Freedom Restoration Act." Staver drafted Florida's RFRA. "We've never had any of these issues people are claiming the Indiana RFRA will provide," he adds. "There's a complete mischaracterization of what this Indiana religious freedom does and is intended to do."

Under pressure from the business community inside and outside Indiana, the governor and legislative leaders have said they they’re open to clarifying the law, which means it could be revised later this spring.