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Religious Tolerance logo

State religious freedom to discriminate laws

Part 2:
2015-MAR: Differences between the federal and
Indiana Religious Freedom Restoration Acts
(RFRAs).

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This topic is a continuation of the previous essay

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The term "LGBT" refers to the Lesbian, Gay,
Bisexual and Transgender/Transsexual community.

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History and background. The federal RFRA act:

The original Religious Freedom Restoration Act is a federal act. 1 It was passed in response to a 1990 decision by the U.S. Supreme Court in the case Employment Division v. Smith. The two defendants in this case who:

"... worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related 'misconduct'." 2

Native Americans and other aboriginals in many areas of the world have used hallucinogens during their religious rituals for millennia.

The Oyez.com web site discussed this ruling of the U.S. Supreme Court:

"Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion 'would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.' Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. 2

A very broad coalition of religious groups were concerned about the federal government using this high court decision to also intrude on their own religious practices. They approached the government, asking them to pass a Religious Freedom Restoration Act (a.k.a. RFRA). Such a law would guarantee individual members of religious groups freedom from government intrusion in their religious practices. RFRA prohibits the passage of federal laws that substantially restrict an individual's free exercise of religion. It was passed unanimously by the House received only three dissenting votes in the 100 seat Senate. It was signed into law by President Bill Clinton and became effective on 1993-NOV-16. 3

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History and background. Subsequent state RFRAs:

In 1997, the federal RFRA was held to be unconstitutional when applied to the states as a result of a court decision in the case City of Boerne v. Flores. However, it continues to be applicable to federal laws. The "City of Boerne" case caused about 20 some states to pass their own RFRA laws that apply within their borders. These early state RFRA acts were similar to the federal law; they protected individual believers from discrimination by the their state governments.

Most religious conservatives have been strongly opposed to same-sex marriage because of their interpretation of about a half dozen "clobber" passages in the Bible. With the acceptance of marriage equality across most of the United States, many religious conservatives felt that their beliefs were under attack. They have recently been fighting a losing battle as state after state legalized such marriages. By early 2015, with many observers expecting that the U.S. Supreme Court will legalize same-sex marriage across the entire country in mid-2015, many conservative individuals and groups who had been fighting same-sex marriage are now switching their efforts to preserving their right to discriminate against the LGBT community.

The Indiana RFRA act -- and many similar recent laws in other states -- is called a Religious Freedom Restoration Act, just like the federal law. However the state RFRAs work in the opposite direction: they encourage individual believers to discriminate against others. The former victims have become the persecutors.

The text of Indiana's "religious freedom" law is available online. 4

Thirty legal scholars from a range of Universities -- including Indiana University -- signed an eight page statement of concern about the Indiana RFRA bill. They said, in part:

"Although some proponents of the legislation maintain that the proposed RFRAs offers a modest and reasoned method to secure rights to religious liberty in Indiana, it is our expert opinion that the proposals, if adopted, would amount to an over-correction in protecting important religious liberty rights, thereby destroying a well-established harmony struck in Indiana law between these important rights and other rights secured under the Indiana Constitution and statutes. ...."

"The definition of 'person' under the proposed RFRA differs substantially from that contained in the federal RFRA, affording standing to assert religious liberty rights to a much broader class of entities than that currently recognized by federal law. ..."

"This parallel between support for the federal RFRA and the proposed state RFRA is misplaced. In fact, many members of the bipartisan coalition that supported the passage of the federal RFRA in 1993 now hold the view that the law has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law. As a result, the legislators who voted on RFRA have distanced themselves from their initial backing of the legislation." 5

Rachel Percelay, writing for MediaMatters, points out many differences between the federal and Indiana RFRA statutes:

"Indiana's RFRA contains an extremely broad definition of 'person' that includes organizations, corporations, or companies that are:

'compelled or limited by a system of religious belief held by an individual or the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes'." 6

Dominic Holden, writing for Buzzfeed, said:

However, critics insist SB 101 [the Indiana RFRA bill] is broader than federal law. ..."

"While the Indiana bill says that a 'governmental entity may not substantially burden a person's exercise of religion,' it also applies those rules to businesses and interactions between private parties 'regardless of whether the state or any other government entity is party to the proceeding'. Under the Indiana law, a religious liberty defense would be available under all state laws and local ordinances, unless state law provides a specific exemption." 7

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2015-MAR-26: Governor Mike Pence (R) signed the Indiana RFRA bill into law:

Tony Cook, writing for the IndyStar, said:

"Three of the lobbyists who pushed hardest for last year's gay marriage ban — Micah Clark of the American Family Association of Indiana, Curt Smith of the Indiana Family Institute and Eric Miller of Advance America — were among the 70 to 80 guests invited to the private bill signing.

'It is vitally important to protect religious freedom in Indiana,' Miller said in a statement after the bill signing. 'It was therefore important to pass Senate Bill 101 in 2015 in order to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs!'

Socially conservative advocacy groups were joined by the Catholic Church, Indiana Right to Life, and many evangelical Christians in supporting the measure." 8

photo of signing of RFRA bill in Indiana

This photo of the signing of the RFRA bill into law was provided by the Governor's office. His office did not identify any of the observers by name.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "42 U.S. Code § 2000bb - Congressional findings and declaration of purposes," Legal Information Institute, at: https://www.law.cornell.edu/
  2. "Employment Division v. Smith," OYEZ.org, undated, at: http://www.oyez.org/
  3. "Religious Freedom Restoration Act," Wikipedia, as on 2015-MAR-28, at: http://en.wikipedia.org/
  4. "Here it is: The text of Indiana's ‘religious freedom’ law," IndyStar, 2015-MAR-27, at: http://www.indystar.com/
  5. 30 signatories, "Re: Religious Freedom Restoration Act," Columbia University, 2015-FEB-27, at:  http://web.law.columbia.edu
  6. Rachel Percelay, "Fox News' Dishonest Defense Of Indiana's Anti-LGBT "Religious Freedom" Law," MediaMatters for America, 2015-MAR-26, at: http://mediamatters.org/
  7. Dominic Holden, "Infuriating LGBT Advocates, Indiana Governor Signs Religious Freedom Law," BuzzFeed News, 2015-MAR-23. at: http://www.buzzfeed.com/
  8. Tony Cook, "Gov. Mike Pence signs 'religious freedom' bill in private," IndyStar, 2015-MAR-27, at: http://www.indystar.com/

Copyright © 2015 by Ontario Consultants on Religious Tolerance
Posted: 2015-MAR-28
Latest update: 2015-MAR-29
Author: B.A. Robinson

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