19 Other States Have Enacted Religious Freedom Restoration Legislation, So Why The Fuss Over Indiana?

Indiana Governor Mike Pence (R) has signed a bill into law that would allow businesses to refuse service for religious reasons.  Indiana's new Religious Freedom Restoration Act (RFRA) has attracted much attention and drawn fierce criticism.

Some, as Washington Post's Hunter Schwartz, have suggested that the outrage over Indiana's new law is overblown.  Using data from the National Conference of State Legislatures, Schwartz and others have pointed out that 40 percent of the states, and the federal government, have RFRAs on the books.  The federal RFRA was passed in 1993.  It prohibits the "government from 'substantially burdening' individuals' exercise of religion unless it is for a 'compelling government interest' and is doing so in the least restrictive means."  While the U. S. Supreme Court decided in 1997 that the federal RFRA did not apply to the states, 20 states have since enacted their own RFRAs.  It appears, then, that Indiana's RFRA is no different from the RFRAs that were passed in 19 other states without drawing the same level of attention or criticism.

As the National Conference of State Legislature website states however, "these [state] laws are intended to echo the federal RFRA, but are not necessarily identical to the federal law."  This is the case for Indiana's RFRA, Garrett Epps, of The Atlantic, explains.  The Indiana statute differs from the federal RFRA and most state RFRAs in two important ways:

  • "First, the Indiana law explicitly allows any for-profit business to assert a right to 'the free exercise of religion.' The federal RFRA doesn't contain such language, and neither does any of the state RFRAs except South Carolina's; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs."
  • Second, "the new Indiana statute states that '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.'  Neither the federal RFRA, nor 18 of the [other] 19 state statutes [...] says anything like this; only the Texas RFRA, passed in 1999, contains similar language."

In effect, these provisions ensure that businesses can use Indiana's RFRA against civil-rights suits brought by individuals.  This is a significant departure from existing federal and state RFRAs, because as Epps explains:
"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. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this 'religious objection' box. But, as Henry David Thoreau once wrote, 'Some circumstantial evidence is very strong, as when you find a trout in the milk.'  [...] 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.'" (emphasis added)

Read more:

TeachingwithData.org resources:
Age and Attitudes about the Rights of Homosexuals: A Data-Driven Learning Guide (http://www.teachingwithdata.org/resource/3237)
Frederique Laubepin

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