More Thoughts on the Indiana RFRA Controversy

This post is adapted from a Facebook note I published today, which was in response to a discussion on a friend’s timeline. A Facebook timeline is not well suited to the back-and-forth of serious issues, and it is not my goal to fill up someone else’s timeline with my views, so instead I wrote a note and tagged my friend. I omit the friend’s name here.

I don’t want to impose on your timeline any further with my own views, so I’m tagging you in this note. You can read it or not as you prefer. To begin with, I first commented on the Indiana Restoration of Freedom of Religion Act (SB101) in my earlier blog post. It will be clear from that post that we have a fundamental disagreement on several points of the underlying issues regarding the role of scripture and whether free exercise of religion extends into one’s daily commercial activities. It is true that many believers hold that witnessing for Christ must be done in all aspects of life, including in their business operations. But this fundamental disagreement is not what prompted me to initially comment on your timeline post of a few days ago. Rather, it was your assertion that the Indiana RFRA is identical to those in other states. You also said that media reports to the contrary were “fear mongering from the media.”

In response, I pointed out that the Indiana act differs from the RFRA adopted by Congress and those in most other states in two important respects.

  1. It expressly defines “person” to include for-profit entities such as corporations and partnerships (Section 7 of the act).
  2. It expressly allows the defense of “imposing a substantial burden on exercise of religion” in judicial and administrative proceedings brought by individuals, rather than those where the government is seeking relief (Section 9 of the act).

You prefer to ignore these differences in your further comments. So my main point of contention with your post is that you accuse the media of fear mongering about Indiana’s law being different, when in fact Indiana’s law is different. Next, you raise the issue of cases that have been successfully brought against Christian business owners, generally bakers who refuse to accept an order to provide cake for a same-sex wedding. You said that based on the cases, it is reasonable for these individuals to fear that they will lose their business because they are trying to abide by their religious beliefs but the government wants to force them to conduct business against their business principles. At present, this is actual fear mongering. In the best known case, arising in Colorado, the state’s Civil Rights Commission ordered the baker to cease and desist from its discriminatory practices. It did not enter an award of fines. The order is presently on appeal. Colorado’s state civil rights act expressly includes sexual orientation as a protected class.

Neither Indiana’s nor the federal civil rights acts presently includes sexual orientation or gender identity as a protected class in their public accommodations provisions. Given that both the Indiana General Assembly and Congress are presently under the control of Republicans, it would seem unlikely that either law would soon be amended to add these as protected classes. (Though in this morning’s news, it is said that Indiana may add some kind of anti-discrimination language regarding these groups. I reserve judgment on this until I see the statutory language. But it would be truly ironic if Indiana adds these classes to its public accommodations law as a response to its adoption of a RFRA.)

As long as federal law and Indiana law do not include sexual orientation in the language of their civil rights acts, no business owner faces any risk of monetary damages for refusing service based on sexual orientation. There is no common law action for this grievance. So, asserting that RFRA is necessary to protect from the loss of a business on these grounds is, in fact, fear mongering.

Now, I will briefly move beyond my specific complaint about your post to mention one aspect of my own feelings about the issue. “Substantial burden” is pretty much in the eyes of the offended. It seems to me that those who press forward with claims that they should be able to choose whom to serve in a commercial setting based on religious beliefs are, pardon the expression, trying to have their cake and eat it too. I am no biblical scholar, but I believe “taking up the cross” is supposed to mean shouldering the burdens that come with following Christ. I do not think those burdens should include risk of loss of life, or risk of shutting down a church. But those who would use RFRA to refuse to serve anyone in a commercial establishment would suffer no burdens at all, but would shift the burden entirely to others.

The proposed update to the Indiana RFRA is posted here. It effectively serves as a hybrid civil rights act. It does not expressly create a new general protected class for sexual orientation or gender identity, but it does include these two classes and every other class generally found in civil rights acts in a clause that prevents the use of RFRA to justify refusal of accommodations, which includes general business commerce with the public. In short, as I mentioned above about the potential for irony, if this proposes is adopted, it largely negates the apparent reason that so many conservatives were pushing for Indiana’s law, and takes the first steps to recognizing the two categories as classes that should be protected. Notably it excludes churches and clergy from these provisions, which in my view simply adheres more closely with traditional First Amendment jurisprudence.
[Update 2]
A few minutes ago the Indiana Senate voted to concur in the House bill noted above. The bill effectively creates a “mini-civil rights bill” that includes sexual orientation and gender identity in actions brought under RFRA. It remains to be seen whether Indiana will eventually add these terms to its actual civil rights act. The bill now goes to Governor Pence.
[Update 3]
Governor Pence signed the new bill on Thursday. This effectively restores the status quo for cities such as Indianapolis that have civil rights ordinances that include sexual orientation and gender identity among the protected categories. For the rest of the state, arbitrary discrimination against these classes is still lawful.

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