Last week, Indiana Governor Mike Pence signed into state law the Religious Freedom Restoration Act (RFRA), launching a national debate over the line between religious liberty (supporters of the law lauding its protection of expression of conscientiously-held beliefs) and prevention of discrimination (detractors decrying the law’s inherent malleability in providing legal justification for businesses to deny services based on religiously-based convictions and, therefore, objections).
As an incessant, inveterate question-asker, and life-long learner and researcher…
What’s the law say?
Indiana’s RFRA provides that the “state…may not substantially burden a person’s right to the exercise of religion unless it is demonstrated that applying that burden…is (1) essential to further a compelling governmental interest; and (2) the least restrictive means of furthering (that)…interest” (https://iga.in.gov/legislative/2015/bills/senate/568).
What’s the origin of this language?
The 1993 federal law of the same name. Originally a bill unanimously passed by the House of Representatives and by the Senate (voting 97-3), and signed by President Bill Clinton.
What was the purpose of the federal law?
The assurance of the inviolability of the Free Exercise Clause of the First Amendment, especially in bolstering a previously adopted law, the American Indian Religious Freedom Act of 1978. (The practice of Native American religions, involving special ceremonies at sacred occasions and places, over time, increasingly was infringed upon and prohibited by government interference.)
Do other states have versions of RFRA?
Yes, 19: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.
Why, as there’s already a federal law?
In 1997, the Supreme Court (City of Boerne [Texas] v. Flores, Archbishop of San Antonio, et al.) held that Congress lacked authority to impose RFRA on states; hence, necessitating states, so choosing, to enact the law.
If RFRA is federal law and has been enacted in 19 states, why the public backlash against Indiana?
The debate codified at the heart of RFRA in general is not between the free expression of religion and discrimination, but rather between the free expression of religion and “compelling government interest.” The “burden of proof” that a particular exercise of religion is detrimental to the public good (that being a principal “compelling government interest”) always falls upon the government.
However, the Indiana RFRA in particular contains provisions not found in the other RFRAs. Notably Section 9, which stipulates that an entity (i.e., company, corporation, congregation, organization, or person) whose exercise of religion is burdened can appeal to the law for protection whether a government is involved. All other RFRAs pertain to disputes between an entity and a government. Indiana’s law can apply when an entity and a person (or persons) are involved.
What’s an example of freedom ringing wrong?
My wife and I co-own and operate an entity, a bed and breakfast and events establishment in Spartanburg, SC. We also are Christians.
If our practice of Christianity holds to the belief in and the behavior associated with so-called traditional marriage between one woman and one man (I say “so-called,” for the use of the terminology “traditional,” given that throughout human history many are the varieties of authorized marriages, raises the question: Which tradition?), and…
If the SC RFRA bore the above-cited Indiana RFRA provision…
Then we would be within our right (legally-supported) exercise of religion to refuse service to any gay, lesbian, bi-sexual, or transgender person or persons.
For us, that’s a right that’s wrong.