Indiana’s RFRA is the first to both define individuals to include private businesses and also to cover interactions between “individuals” (including businesses) rather than just with the government.

By Kevin Goebel
March 30, 2015

(Also available in PDF.)

When Indiana’s Governor Mike Pence signed the state’s new Religious Freedom Restoration Act, he didn’t expect the backlash to be so huge.

In one week, more than 10,000 individuals signed petitions against the law. Apple Computer’s CEO, Tim Cook, denounced the law, as did SalesForce’s CEO, Marc Benioff, who cancelled all corporate travel to Indiana. The CEO of Angie’s List also announced that they were halting their planned expansion in Indianapolis. The mayors of San Francisco and Seattle banned using taxpayer funds for business trips to the state. The gamer convention GenCon announced that they are considering moving their annual convention out of the state. And the National Collegiate Athletic Association (NCAA), which is based in Indiana, issued a statement announcing their commitment to making their events inclusive, and would examine the law and study how it would impact their future events.

Pence has blamed the backlash on outside agitators (because no Hoosier could possibly oppose it on their own), and said that it’s a “misunderstanding driven by misinformation.” He claims that Indiana’s Religious Freedom Restoration Act is identical to the Federal law passed in 1993 and signed by President Clinton, and identical to similar laws in 19 other states.

And for the most part, the press has gone along with him. After all, they have identical titles so they must be the same, right?

They’re not.

Someone casually comparing Indiana’s Religious Freedom Restoration Act with others might easily assume they are the same. But the text of Indiana’s has some subtle but important differences that make it go far, far, far beyond anything in any statute anywhere in the United States. For the first time, a state RFRA extends beyond governmental actions and explicitly covers actions between individuals and businesses.

The Federal RFRA

The Free Exercise Clause of the First Amendment to the U.S. Constitution prohibits the Federal government from infringing upon the free exercise of religion. In the 1960s, the U.S. Supreme Court generally held that this clause meant that laws passed by the Federal government had to meet a strict scrutiny standard with religion. That meant that laws interpreted to limit religious liberty had to be for a compelling government interest, and that the laws must be done in the least restrictive manner possible.

Then in the 1980s, the Supreme Court began to uphold laws that might burden the free exercise of religion if the law was “generally applicable” to all individuals. This came to a head with Employment Division v. Smith (1990), when the Supreme Court upheld Oregon’s Employment Division’s decision to withhold unemployment benefits from two Native Americans who were fired after testing positive for mescaline, a psychotropic drug derived from the peyote cactus which is used in some Native American religious ceremonies. In Smith, the Supreme Court ruled that because Oregon’s laws around drug use did not solely single out peyote or Native American religious practices, but was generally applicable to all Oregon citizens, it did not infringe upon religious liberty.

In response, the Federal government passed the Religious Freedom Restoration Act in 1993, which statutorily reinstated strict scrutiny as the legal standard for statutes that incidentally affect an individual’s religious expression.

The scope of the Federal RFRA was limited to government interactions with individuals. Although it was originally interpreted to cover state and local governments, the Supreme Court later ruled in City of Boerne v. Flores (1997) that it only applied to the Federal government. As a result, many states – 19 before Indiana – began to adopt their own RFRA statutes so that strict scrutiny would apply to all statutes passed by their state and local governments.

SCOTUS changed the landscape

When the U.S. Supreme Court ruled in City of Boerne v. Flores (1997) that the RFRA only applied to the Federal government’s interactions and didn’t apply to state and local governments, 19 states adopted their own laws modeled after the RFRA.

But since then, two other recent Supreme Court decisions have significantly altered the legal landscape.

In 2010, the Supreme Court’s ruling in Citizens United v. Federal Election Commission overturned hundreds of years of precedents that recognized Congress’ power to regulate “the improper use of money to influence the result [of an election].” The Supreme Court ruled that the First Amendment’s Free Speech protections prohibited governments from restrictions on independent political campaigns, and that those protections were extended not only to individuals but also to nonprofits, the plaintiffs in Citizens United, as well as for all other for-profit corporations, labor unions, and other associations.

Then in Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court ruled that a “closely held corporation” could have a religious belief, and therefore the RFRA extends to not only individuals but also to many for-profit businesses.

The Internal Revenue Service defines “closely held corporations” as any business where 50% of the company’s stock is owned by five or fewer individuals and which are not personal service corporations (defined as businesses in the fields of accounting, actuarial science, architecture, consulting, engineering, health (including veterinary services), law, and the performing arts that are at least partially employee-owned). That definition includes about 90% of all businesses in the United States and covers about 52% of the U.S. workforce (because publicly-traded corporations tend to have more employees than closely-held companies).

It’s important to note that the decision in Hobby Lobby was based on interpreting the Federal RFRA, not the Constitution. The Supreme Court did not overturn precedents set in the 1980s and 90s which held that the free-exercise of religion clause of the First Amendment did not prohibit statutes that inadvertently infringed on religious freedom so long as all citizens are treated identically.

Arizona’s experience

A number of states have adopted statutes substantially similar to the Federal RFRA. Arizona was one that adopted the standard language when it passed Ariz. Rev. Stat. Ann §§41-1493-1439.02 in 1999.
Then in 2014, the Arizona Legislature passed S.B. 1062, a bill to amend the Arizona RFPA to explicitly extend the religious protections against governmental action to also cover interactions between businesses and individuals. Arizona’s original RFRA covered person to include individuals, religious assemblies, and religious institutions. S.B. 1062 would have amended it to include all other associations, partnerships, corporations, and other legal entities.

In essence, the statute would have allowed any business or individual to be exempt from any state or local law – including public accommodation laws prohibiting discrimination – if they claimed it burdened their exercise of religion. Critics argued that it would allow any business or individual to discriminate based on sexual orientation.

State and national businesses, including the Chamber of Commerce, came out against the law. The National Football League expressed its concerns, prompting speculation that they might move Super Bowl XLIX from Phoenix. The NFL previously moved Super Bowl XXVII from Tempe, Arizona, in 1992 after Arizona voters decided not to observe Martin Luther King, Jr. Day.

Governor Jan Brewer, though no ally to the LGBT community, listened to the business community and vetoed the bill. At her press conference, she stated:

“Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty has been violated.

The bill is broadly worded and could result in unintended and negative consequences.
After weighing all of the arguments, I vetoed Senate Bill 1062 moments ago.”

Indiana’s RFRA is different

Indiana’s RFRA takes the idea from Citizen’s United that corporations are people, and explicitly extends the premise in Hobby Lobby that a for-profit company can claim a religion and an infringement of religious freedom. And for the first time, it extends that to interactions between individuals.

• Indiana’s RFRA explicitly defines “individuals” to include every type of for-profit business and corporation. The Federal RFRA doesn’t do that, and neither do any of the other state ones except for South Carolina’s. (In contrast, Louisiana and Pennsylvania’s RFRAs explicitly state that they do not cover for-profit businesses.)
• Religion is not defined, and “any exercise of religion” can be interpreted extraordinarily broadly.
• Religious infringement can be claimed whether or not it is “compelled by, or central to, a system of religious belief.” In other words, it can be claimed even if the individual can’t point to religious texts supporting their belief or even demonstrate that the belief is held by others of their faith.
• Indiana’s RFRA, like Texas’ but unlike anyone else’s, states that anyone can assert a religious liberty infringement “regardless of whether the state or any other governmental entity is a party to the proceeding.” In other words, a business’ “free exercise” of religion provides a defense against lawsuits from other individuals.

In other words, all businesses and corporations – not just individuals, and not just “closely held corporations” – can claim religious infringement, and they can do so against other individuals rather than solely against governmental entities like most states.

A New Mexico court found in Elane Photography v. Willock (2013) that New Mexico’s RFRA did not apply in a lawsuit over a professional photography studio’s refusal to photograph a same-sex wedding because the government wasn’t a party to the suit. (In 2014, the U.S. Supreme Court declined to accept an appeal of the case.) Indiana’s RFRA would provide a defense in a similar suit, even if the government wasn’t a party. And it even allows the government to intervene in a suit on behalf of the bigots business being sued.

As Garrett Epps, a professor of Constitutional Law at the University of Baltimore, wrote in The Atlantic:

“Of all the state “religious freedom” laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people…. The statute shows every sign of having been carefully designed to put new obstacles in the path of equality; and it has been publicly sold with deceptive claims that it is ‘nothing new.’

Being required to serve those we dislike is a painful price to pay for the privilege of running a business; but the pain exclusion inflicts on its victims, and on society, are far worse than the discomfort the faithful may suffer at having to open their businesses to all.”

Much of the discussion around Indiana’s law has focused on whether bakers should be forced to make a cake for a same-sex wedding. But it’s not about a cake. Most couples would probably rather give their business to someone who supports their marriage. (But if every business refused to serve them? What then?)

The law makes no exemptions for any specific types of business. A couple arriving late from out-of-town with confirmed late arrival could suddenly be turned away from their hotel when the establishment discovers they are a same-sex couple – or an unmarried couple, or an interracial couple. Or Muslim. An on-call OB/GYN could refuse to deliver the baby of a lesbian couple. A paramedic could refuse to treat a gay patient. A volunteer fire department, assuming they weren’t considered to be a city agency, could refuse to put out the fire at a gay Metropolitan Community Church. Or a synagogue. Or a Mormon temple. Or a mosque.

It’s possible that Indiana has other statutes that expressly require service in emergency situations, for example, or other universal coverage mandates. Those statutes, if they exist, no longer matter. Indiana’s RFRA stipulates that it covers all future and existing statutes (as well as executive and administrative orders) regardless when they were adopted, except for state statutes that expressly stipulate by citation that it is exempt from the RFRA. That obviously covers every existing statute, which could not possibly cite a law that did not yet exist – including laws mandating emergency services.

Allowing any business to exempt itself from any statute, or from any interaction with any other business or individual, on any “religious grounds,” even religious grounds not held by anyone else anywhere else, will most assuredly result in unintended consequences.

Could a person claim an exemption from the state’s hunting license requirements because of Genesis 1:28 (“And God blessed them. And God said to them, “Be fruitful and multiply and fill the earth and subdue it and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.”)?

Could a corporation not claim that the religious commandment to “fill the earth and subdue it” commands them to draw from the earth its treasures, and thus claim an exemption from the state’s ban on fracking?

At its most extreme, Indiana’s RFRA could be interpreted to allow any person or business to be exempt from following any law they want. There will be unintended consequences. I can’t wait to see them.

Sources

Anderson, Matt, “The Indiana Religious Freedom Restoration Act – An Analysis of Its Controversy,” IN Advance, March 27, 2015.

“Arizona,” RFRA Perils.

Blake, Aaron, “A LOT of people could be affected by the Supreme Court’s birth control decision — theoretically,” The Washington Post, June 30, 2014.

Bradner, Eric, “Gov. Mike Pence: Indiana ‘not going to change’ anti-LGBT law,” CNN, March 30, 2015.

Brewer, Governor Jan, “SB 1062 – Press Conference: Remarks by Gov. Jan Brewer,” found on RFRA Perils.

“Elane Photography, LLC v. Willock,” SCOTUSBlog, April 7, 2014.

Epps, Garrett, “What Makes Indiana’s Religious Freedom Law Different?” The Atlantic, March 30, 2015.

Ford, Zach, “Conservatives Admit The Truth On Indiana ‘Religious Freedom’ Law,” ThinkProgress, January 6, 2015.

“Here it is: The text of Indiana’s ‘religious freedom’ law,” IndyStar, March 27, 2015.

Legum, Judd, “The Big Lie the Media Tells About Indiana’s New ‘Religious Freedom’ Law,” ThinkProgress, March 30, 2015.

Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4

Rhoden, William C., “Off the Dribble and Into a Firestorm in Indiana,” The New York Times, March 29, 2015.

Steiger, Kay, “Governor Becomes Frustrated When Asked If ‘Religious Liberty’ Law Will Be Used To Discriminate,” ThinkProgress, March 29, 2015.

Wilson, Ryan, “Business leaders worried bill could prompt NFL to relocate Super Bowl,” CBS Sports, February 25, 2014.

Wilson, Tiffany, “Bay Area businesses strike out against Indiana law,” ABC 7 News, March 29, 2015.