“All” is, of course, an intentional use of hyperbole. But in the case of Indiana’s enactment of SB 101, its version of a “Religious Freedom Restoration Act,” a large majority of state assembly members voted to pass the act. Governor Mike Pence, though saying in several public appearances in the past few days that signing it was the right thing to do, was concerned enough about the fallout that he held a private signing ceremony where he was flanked by several folks who have publicly supported discrimination against gay and lesbian people.
Much has been made about the “fact” that Indiana’s new law is similar to the Federal RFRA, which was the basis for last year’s ruling by the U.S. Supreme Court that Hobby Lobby, a private for-profit corporation, did not have to comply with the provisions of the Affordable Care Act and regulations adopted pursuant to it that require such companies to include contraceptive coverage in health insurance policies. The same articles point out that at least 20 other states have similar laws. I think that all these laws are a bad idea, and arguably unconstitutional (I know that this is a minority opinion), but Indiana’s is unlike the others in a significant aspect. In Section 9 it states, “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.” This language appears to let a business otherwise engaged in public commerce to limit its service to certain individuals when the owner believes doing so is “a substantial burden on its exercise of religion.” Sexual orientation and gender are not currently protected classes under Indiana or Federal law, as neither the Federal government nor Indiana have ever legislatively stated that either has a compelling interest in protecting people in those classes. (The various RFRA Acts require that there be such a compelling interest to overcome the claim that compliance constitutes a substantial burden on the exercise of religion.) Hence, the Indiana act appears to allow private interests to refuse to accommodate people based on their gender or sexual orientation. (Congress last year had considered passage of the Employment Non-Discrimination Act of 2013, S.815 and H.R.1755, but after Senate passage the House refused to consider it. That law would have added sexual orientation and gender identity to the list of protected classes in employment matters, but not in public accommodations, which is a broader area under the Civil Rights Act of 1964 as amended.)
The Federal RFRA was a response to a Supreme Court decision holding that despite the free exercise clause, individuals could be legally prohibited from using peyote although it was for sacramental purposes of their Native American Church. The hearings and report on RFRA indicate that the Court had decided this issue counter to previous jurisprudence, and wanted to address this perception by the enactment of RFRA. Hence, Congress passed and then-President Clinton signed the act, which requires the government to show a compelling interest to require compliance to a law that is of general applicability to everyone when an person claims the enforcement is imposing a substantial burden on the exercise of religious expression.
As we learned in Hobby Lobby last year, the Supreme Court will not inquire about the reasonableness of the claim: the majority held that the claim’s proponent must only sincerely hold the belief, regardless of its factual accuracy. In that case, despite the scientific consensus that none of the forms of contraception at issue are abortion, Hobby Lobby’s owners’ belief that they are was enough to persuade the Court that the regulations were a substantial burden that were defeated by RFRA. We have no reason to think that a state court applying Indiana’s law would rule any differently in a case in that state where any person who claims to be opposed to same-sex marriage, or for that matter, to homosexuality or transgender status, for religious reasons to deny service or accommodations to a person in that category. Indiana’s law is, on its face as enacted, discriminatory against these classes of people. The arguments of its many of its proponents admit as much, regardless of Mike Pence’s protestations to the contrary.
Many are calling for the Indiana General Assembly to amend the law by adding a clarifying statement of intent, or by removing Section 9 as noted above. The latter action would make the act in accord with the RFRAs in other jurisdictions. We do not yet know whether this will happen, though at present it seems unlikely. Frankly, I think RFRA as a concept is a perversion of the intent of the first of the two clauses of the First Amendment relating to religion. Those waving the Free Exercise Clause as a shield, and to some degree as a sword, are too wont to completely ignore the Establishment Clause. I believe that RFRA, as applied in Hobby Lobby and perhaps more generally, violates the latter clause by elevating the concerns of those professing religious belief over the needs of the common good. That the Court found a private, closely-held, for-profit corporation can complain of the impingement of the Free Exercise Clause, to the detriment of society in general, adds insult to injury.