The Indiana Religious Freedom Restoration Act

My adopted home state is getting a lot of criticism for enacting a state version of RFRA.  I’m not sure why.

The concern is that the statute will authorize many businesses to refuse service to gays and lesbians.  As far as I know, though, no case construing the federal version of RFRA or the other state versions has held that this fact-pattern is covered.  Now is such an interpretation possible?  Yes.  Do some of the legislators who supported this statute in Indiana want that interpretation to be the law?  Probably.  My only point, though, is that there’s nothing special about Indiana’s statute as compared to the one enacted by Congress in 1993 or by many other states, and none of them (so far) authorize discrimination based on sexual orientation.

 

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3 Responses

  1. Joe says:

    “there’s nothing special about Indiana’s statute as compared to the one enacted by Congress in 1993”

    This is open to debate. It has been argued that the law is “broader than the federal” RFRA:

    http://www.buzzfeed.com/dominicholden/religious-freedom-bill-looks-set-to-pass-in-indiana#.shgKpA25Y

    Some are wary about the federal RFRA, especially after Hobby Lobby, so saying (especially if state courts will be more open to exemptions than federal courts here) both are the same won’t please many as is. The more new, and perhaps in some fashion broader, RFRAs are passed, the more chance of “problematic” applications. Again, state courts in more conservative states might be more likely to allow this sort of thing. The law also might clash with some local anti-discrimination laws in the state that protect gays and lesbians. Overall, the timing is suspicious — why now?

    The criticism doesn’t really seem curious. We can debate the concerns on a factual basis, but that’s another matter.

  2. Gerard, the Indiana RFRA tracks the federal RFRA very closely. Further, four courts of appeals have held that the federal RFRA can be raised as a defense in private cases. http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/

  3. Nancy Marcus says:

    I too was of the camp that there was nothing dramatically different about Indiana’s RFRA other than the blatantly anti-lgbt context in which it was passed (the legislative debates down here in Indiana were painful to watch)….until I looked at the text of our statute (As it existed before yesterday) side by side with RFRA statutes from other states. there are two key differences: (1) the definition of “person” is even broader than that in the Hobby Lobby case, as it is defines “person” as even any organization or “entity,” (2) “regardless of whether the government is a party” was new language added to the statute, in clear response to what happened in the New Mexico Supreme Court where it was ruled that that state’s RFRA cannot be used as a defense against discrimination claims brought by private parties because the statute was only directed at action and relief against the government. When you view these textual differences in the context in which the Indiana bill was passed, it seems clear they were directed toward making it easier for businesses to evade public accommodations and other laws in refusing to serve LGBT people.