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Not all RFRAs are created equal: What’s different about Indiana’s controve …

A core argument among the law's defenders is that there is already a federal RFRA and 19 other states have a law exactly like the Indiana's. But similar is not same. - Photo: The Indiana state capital building.
A core argument among the law's defenders is that there is already a federal RFRA and 19 other states have a law exactly like the Indiana's. But similar is not same. - Photo: The Indiana state capital building.

A core argument among the law’s defenders is that there is already a federal RFRA and 19 other states have a law exactly like the Indiana’s. But similar is not same. – Photo: The Indiana state capital building

Move over, Gene Hackman. Indiana is becoming known for a lot more than just Hoosier’s basketball.

After the state passed a law purported to restore “religious freedom,” it was met with crushing criticism from those who believe the law grants a “license to discriminate” against the LGBT community. Dissenters include Ashton KutcherIndiana Pacer great Reggie Miller, Tim Cook of Apple, and the mayors of both San Francisco and Seattle, who have restricted the travel of municipal workers to Indiana in protest. NBA Hall-of-Famer Charles Barkley wants next weekend’s NCAA Men’s Final Four basketball championship to be moved from host-city Indianapolis. Others are also calling for a boycott of the state.

Meanwhile, conservative Christians leaders like Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, are ecstatic. Tony Perkins of the Family Research Council says that this widespread opposition “reveals who the real bullies are.”

A core argument among the law’s defenders is that there is already a federal RFRA and 19 other states have a law exactly like the Indiana’s.

“Hey @SenSchumer, care to explain how Indiana religious freedom law is any different than the one you SPONSORED in Congress,” Ryan Anderson of the Heritage Foundation tweeted to the New York Senator, who backed the bipartisan 1993 federal statute that birthed the RFRA brand. Josh McCormack of The Weekly Standard blasted CNN and the New York Times for “ignoring the fact that many other states and the federal government have the same law on the books.”

That might make for a nice talking point, but it is not true. Similar is not same — something most of us learned in grade school.

Howard Friedman, a widely-respected First Amendment scholar, points out that Indiana’s RFRA is broader than the federal RFRA in significant ways. For example, the law explicitly protects entities (not just individuals) including corporations, without limiting to the law’s reach to closely-held companies as done in the Supreme Court’s Hobby Lobby decision.

Friedman also notes that the Indiana law can be invoked when a person’s religious exercise is “likely” to be substantially burdened by government action. The substantial burden does not even have to occur for the law to apply. And, also unlike the federal RFRA, the Indiana RFRA offers religious freedom as a legitimate defense in disputes between private citizens, even if the government is not involved.

“What is clear is that Indiana has not copied the federal legislation or those passed by other states, but has instead added more expansive language…[giving] pause to the endless possibilities of using religion and religious freedom as a sword and a shield,” writes Matt Anderson, a civil trial attorney.

Aaron Weaver is an author, scholar and communications manager for the Cooperative Baptist Fellowship. He is a 2013 graduate of Baylor University, where he received his Ph.D. in religion and politics. Image courtesy of Aaron Weaver.

Aaron Weaver is an author, scholar and communications manager for the Cooperative Baptist Fellowship. He is a 2013 graduate of Baylor University, where he received his Ph.D. in religion and politics. Image courtesy of Aaron Weaver.

Now in its 21st year, the federal RFRA was an attempt to restore the high standard in religious liberty jurisprudence that the Supreme Court gutted in 1990, and require government to demonstrate a “compelling state interest” to justify substantially burdening free-exercise rights of citizens (and do so via the “least restrictive means”).

When the Supreme Court held in 1997 in City of Boerne v. Flores that Congress had overstepped its authority, ruling that RFRA could not be applied to the states, a movement was launched to adopt RFRAs in state legislatures across the country. From 1998 to 2000, ten states passed their own RFRAs and nine others, including Indiana, have followed suit in the 15 years since (Connecticut adopted its version in 1993).

Many states chose to carve out areas where their religious freedom law does not apply — something conservative legislators in Indiana refused to do with regard to existing anti-discrimination ordinances in several cities and counties. That refusal along with the timing of this “religious freedom” law — coming on the heels of an unsuccessful effort to defend the state’s ban on same-sex marriage before the Seventh Circuit Court of Appeals — makes clear to honest onlookers that the law is intended to make it easier to discriminate against LGBT individuals.

The federal RFRA reflects a “delicately balanced formula” which contains carefully considered, consensus language agreed upon after much study and discussion by an extremely diverse group of civil rights and faith-based organizations. Why the need to modify this time-tested model with radically expansive new language as done in Indiana and tried unsuccessfully of late in states like Arizona, Kansas and Georgia?

If its conservative champions were truth tellers and not trading in deception trying to pretend the Indiana RFRA is the same as the federal RFRA, they’d acknowledge that the goal is not to restore a long-standing religious freedom standard, but to rig the process to better ensure a desired result — a result that most recognize as discrimination.

Not all RFRAs are created equal. Let’s at least be honest about that.

Aaron Weaver is an author, scholar and communications manager for the Cooperative Baptist Fellowship. He is a 2013 graduate of Baylor University, where he received his Ph.D. in religion and politics.

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29 Comments

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  • The RFRA was badly flawed law to begin with. It telling that its progeny is even worse. Instead of unintended consequences which are damaging to 14th Amendment equal protection, you have intentional ones.

    Instead of loopholes which could allow someone creative to come up with a religious argument to refuse compliance with laws of general application, they make it explicit. These state laws are designed by their nature to make Christians laws unto themselves.

    These laws do not mention “free exercise” of religion, they talk simply about vague notions of religious expression. Religious expression and free exercise of religion are not synonymous. Prior to RFRA, legal religious expression did not include a right to harm others in the name of your faith. Now it can include a right to attack rights of others or limit access to government benefits. Hobby Lobby was not engaging in free exercise of religion. Neither are bigoted business owners. However under these horribly vague laws, their actions are considered religious expression.

    Religious expression was not under attack by Employment Division v. Smith. RFRA never served a legitimate purpose. It needs to go.

  • This is one of the better explanations I’ve seen, but it is missing one point- that the beliefs that are being violated (or are likely to be violated…) don’t even have to be “central to a system of religious belief.”

    In section 5, the bill states: “As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to,a system of religious belief.”

    This opens up a lot possible abuses- some of which are obviously intentional, but I can imagine several that FRC and their ilk will not be as excited about.

  • Dr. Weaver,

    It is your belief that Indiana’s RFRA grants more expansive religious liberty than citizens of Indiana had prior to Employment Division v Smith? If so, could you expound on that a little?

  • I seriously doubt that even a perfect duplicate of the federal law would have been acceptable to gay rights activists. The changes are already really minor.

  • It seems to me that those who object to providing goods and services to gays based on their religious beliefs are not necessarily endorsing what they consider sinful. For example, if I believed the death penalty is morally wrong, I would still provide goods and services who do not share my view, and would do so without endorsing the death penalty.

  • Good to see your column, Aaron. Hope you will write more for RNS. It is great to have a fellow Cooperative Baptist to which to respond.

    Brent Walker of the Baptist Joint Committee on Religious Freedom issued a statement this morning (April 1st) on the Indiana RFRA. Also Hollyn Hollman, an attorney with RJCRF, has written an informative article about the Utah compromise RFRA. Untah has been called the most red state in the nation, yet a very workable compromise was achieved.

    Just pointing out the discrimination regarding gays and gay marriage, is not enough. I understand from what I read about the Indiana bill that a rather last minute amendment was added which prevents employees from suing their employers.

  • If you are opposed to the death penalty, should you be required to cater the executioners’ lunch for the after injection party? There is a difference in serving birthday cake and wedding cake.

  • I guess a better case is to ask if it would be okay for me to sell syringes, but refuse to sell syringes to executioners because I had moral qualms about it.

  • If you have non-bigoted objections to serving a customer’s reasonable request, wouldn’t you try to find a way to deal with them that doesn’t involve clearly malicious discriminatory behavior?

    Of course you would.There is always an alternative in real life situations which does not involve discriminating.

    If you believe the only course of action is discrimination against a customer, you are either too stupid to stay in business or lying about your “reasonable” objections.

    So please take your “acts of conscience”, nonsense hypotheticals and your dishonest mealy mouth interpretations of clearly discriminatory behavior and shove them somewhere painful. Its all bullcrap. Your real goal is to say, “We don’t serve your kind” and you are too much of a coward to say so in public.

  • Utah’s law is crap as well. It is full of loopholes which are as bad as Indiana’s law. Plus it has a poison pill provision that if any part of it is challenged in the judiciary for Constitutionality, the whole law is repealed automatically. It gives the appearance of anti-discrimination provisions but not the reality of it.

    “a rather last minute amendment was added which prevents employees from suing their employers.”

    Which kind of defeated the purpose of the RFRA for many as well. The Indiana law is meant to permit discrimination under pretenses of religious belief. Any attempt to prevent such an interpretation was shot down in committee. Pence has pretty much made it clear it was his intention and has no desire to change it.

  • The “endless possibilities of using religion as a sword and shield” requiring the “delicate balance achieved by federal legislation”……

    All based on hypothetical scenarios where less than 3% of the national population might be refused service (discriminated against) as a result of the religious convictions of a much smaller percentage.

    Talk about majoring on minors, discriminating against the influence of Christianity and balking at any idea of states rights or sovereignty … It’s “inside out” as the Traveling Wilburys used to sing.

    Remind us again how the conclusions of the progressive/liberal corner the market on “truth”.

  • It was a workable compromise for the Mormon church. It still allows discrimination by the people who are most likely to do it.

    We’ll see after a time just how good it was.

  • Civil liberties are always about limiting the actions of majorities against minorities. Majorities can protect themselves through exercise of political voting power. Minorities depend on limits to that power. States gave up any claims to determining civil liberties with the 14th amendment. Libertarian arguments are useless in these situations.

    What it all comes down to is excuses for discriminatory conduct in open commerce are bullcrap. Whether you claim religious or personal feelings, it is immaterial to the harm of the act itself. There is no legitimate interest in denying people access to commerce on the grounds of arbitrary prejudices and bigotry.

  • I just wondered Larry, are you a constitutional attorney? You write with such surety.

  • “Civil Liberties” have more recently become about detracting from the greater public good (including the influence of religion) by paying more attention to the hypothetical outplay of minority grievances whether or not feared scenarios ever occur.

    Last time I checked, the nation was still supposed to be operating on democratic principles and the demons of discrimination you fear in the bushes regarding this issue have rubber teeth.

    Consequently, I’ll respond in kind to your rationale…”Bull Crap” Sell it to the academics.

    There is no legitimate harm in allowing business (especially mom and pop) the right to refuse service. RFRA or no RFRA.

    Some folks need to grow a little thicker skin if they ever hope to be “happy” in a truly free society with limited government.

    Or is that possible?

  • Your ad hominem attacks don’t give me any way that they are different. It isn’t nonsense. It is exactly the same thing. In the syringe case in real life, the reasonable way to deal with it would be to say “I’m sorry, I can’t support executions in good conscience. But here is a list of phone numbers of people who will sell you the needles you need. However, Mr. Executioner, I will still be happy to sell you your diabetes needles.” That would be perfectly acceptable. The same response has not been accepted for bakers who will make a cake for a homosexual but not for their wedding. There is a line crossed there.

  • It is telling you have to go with FICTIONAL hypotheticals in order to justify real life actual harms to the public you want to support.

    There is NEVER a good excuse for discriminatory conduct in your business. If you were sincere about treating a customer respectfully there are always other options available. You would try to make some kind of accommodation which would work with your beliefs. Something beyond total denial of goods and services.

    If you are supporting discrimination in business, you are telling me, you want to say, “We don’t serve your kind”. That all pretenses of a legitimate objection are a flat out lie, It means you are not only a bigot but a liar as well. If you don’t like that description, tough crap. It is more than appropriate and accurate.

  • You will have to figure that out yourself. I am certain you are not one.

    It doesn’t take a genius to see the law is full of loopholes and has a poison pill provision.

    Its crap.

    It may be constitutional but it is not a real anti-discrimination measure. The Indiana law was discriminatory in its intent and meant to violate the civil rights of gays.

  • Civil liberties since the drafting of the Bill of Rights was about preventing as James Madison called i, “the tyranny of the majority”. To keep political majorities from voting away the rights of political minorities.

    Last time I checked EVERY discriminatory law ever, was passed by a majority vote.It didn’t make them constitutional.

    There are no legitimate excuses for discriminatory conduct in your businesses ever. This is why such things are considered either criminal violations &/or civil torts against people who are protected by anti-discrimination laws. It is a recognized harm to the customers and to the public. So no, your excuses for such behavior are bullcrap.

    You act as if this nation never had a history of legalized discrimination before. There is not one honest point made in your little spiel.

  • Allow me to clarify Larry (Jr. Counselor):

    I’m not concerned at this point with the nuances of historical discrimination in this country nor its previous legal address.

    Unlike you, I’m not arguing a case here, I’m stating the obvious.

    “Civil Liberties” is the smokescreen many “minorities” are chanting today in order to promote agendas, which in your own terms, are “harmful” to both customers and society at large.

    Were James Madison alive today I have no doubt he would be decrying the twisting and perversion of the Constitution to the extent he himself might also add “The tyranny of the MINORITY”

    Hope this doesn’t offend you but laws are like people. Some of them are just plain stupid.

    “Honesty” notwithstanding.

  • I have yet to hear myself one actual fact– something not divorced from reality, from facts, logic, or experience– as to why my sexual orientation and my marriage are harmful to anyone.

    on the other hand, I can certainly supply a number of actual examples wherein homohatred and homobigotry have harmed gay people and straight people.

  • Larry, to quote you: “You will have to figure that out yourself. I am certain you are not one.” I asked you an honest question, however, I’m not that surprised that you are not. The attorneys I know seldom give a definitive answer on most any subject.

    Larry, as I see it you and I are pretty much on the same side, however, I do think a RFRA that mirrors the Federal RFRA is needed in each state. Oh shoot I’ve guess I’ve done it again.

  • Good and honest question Ben.

    Your rights to live a non-malicious lifestyle and earn a living (life, liberty, pursuit of happiness etc.) are harmful to NO ONE and are rightfully protected by law. That answers the question of who you are hurting….. no one. Better here than most other places in the world for those of your orientation (Try Sharia for example).

    However, there’s a flip side to that coin. The protection and freedom you enjoy here to live out your lifestyle/orientation should in no way infringe upon the religiously motivated lifestyle (non-malicious) of others who see the meanings of live and death differently than you.

    In addition to “homophobia” we have in this country a growing problem of “Christianaphobia”…Why? Because until the end of time you will always have Christians who see homosexuality as an affront (not without support from their sacred texts) to their religious conscience.

    It’s strange because Christianity is the historic influence upon the American legal and judicial system which prompted protection of the “minority” to begin with.

    Ben, you have a right to live your lifestyle according to whatever religious or non-religious motivations you embrace. Why shouldn’t Christians be able to do the same?

  • Ben, what is harmful is to force me to use my skill or craft to affirm or celebrate your “marriage” when my religious understanding is that marriage is only between a man and a woman.

  • Chuck– it is only affirming my marriage in your mind. for me, I’m asking you to bake the same cake you bake for everyone else.

    I was a wedding vendor for 30 years. I have never met a cake baker or a florist who thought that by working for someone they were affirming the marriage. We leave that to special-rights Christians to affirm that.

    So, I assume that you refuse to provide cakes for anyone who is not a Christian or is not getting married in a Christian church. After all, if they are not being married by your god, you are affirming their marriage, their heathenry, their rejection of your god and his presence.

    Right?

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