Unless you are one who doesn’t pay any attention whatsoever to news on a national level, I’m pretty sure that you have at least heard something about a law that Indiana passed late last week and the succeeding uproar from different groups regarding that law. This law is Indiana’s own Religious Freedom Restoration Act.
In the uproar, there have been accusations leveled that this legislation will allow individuals, institutions, and businesses to discriminate against a particular group of individuals, like allowing a bakery who bakes wedding cakes to refuse to provide service to a same-sex couple. On the other side, Governor Mike Pence and Republican state legislators who supported this bill state that it would not allow any such discrimination and that, in fact, they say, this piece of legislation is modeled after the Federal Religious Freedom Restoration Act which was signed into law by President Clinton back in 1993.
There is a lot of rhetoric from different groups, both for and against this law, rhetoric that alludes to absolutes, and what this piece of legislation means. So, I did what I typically do in these types of situations – I went to the actual pieces of legislation. I wanted to look at the actual language contained in both. And here is what I found. Yes, Governor Pence, Indiana’s legislation is modeled on the 1993 RFRA, but there is one important addition your legislation has. Second, there are different motivations for the passing of each of these acts.
This important addition is found in section 3 of Indiana’s law where it describes what is included in the term “exercise of religion.” Here is what it says: “The term includes a person’s ability to: (1) act; or (2) refuse to act; in a manner that is substantially motivated by the person’s sincerely held religious belief, regardless of whether the religious belief is compulsory or central to a larger system of religious belief.” Given the fact that this law gives personhood to a business entity, to me, this wording would indeed open the door to a business owner refusing service, in another word, discriminate, to a particular group based upon his/her religious convictions, even though the request for a particular service, like baking a wedding cake, is one the business offers. (I very intentionally say a “service the business offers.” This means that someone could not go into a Jewish meat business, demand that business sell him pork, when that is not something that particular business offers.)
Second, this wording speaks to the motivation for this law, which is different than the stated reason for the 1993 RFRA. Because of this language, I believe it is clear that the motivation for this law is found in the reaction to recent cases from others states (CO, OR, NM come to mind) where a Christian business owner has refused a service, normally provided to heterosexual couples, to a homosexual couple. That is why “refuse to act” is included in this law. This is different from the motivation behind the 1993 RFRA which is stated in the Congressional Findings that “in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” Therefore, the purpose behind the Act was to “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”
The 1990 SCOTUS decision in the Employment Division v. Smith changed the test requirements which had been adopted in the Sherbert v. Verner decision. The elements of this test from this decision had 4 criteria. According to the test, first the court has to determine:
1. whether the person has a claim involving a sincere religious belief, and
2. whether the government action is a substantial burden on the person’s ability to act on that belief.
Secondly, the government must prove that:
1. it is acting in furtherance of a “compelling state interest”; and
2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion.
So, the motivation, as stated at the beginning of the RFRA was to re-establish this test, in response to the 1990 decision from Employment Division v. Smith which severely lessened the need for the government to demonstrate a “compelling state interest.” That is different from the motivation behind Indiana’s Religious Freedom Restoration Act.
Because of the differences of motivation and the inclusion of “refuse to act,” it is easy to come to the logical conclusion that Indiana’s new law was created for the purpose of protecting a business owner who, due to religious grounds/convictions, wanted to refuse service to a same sex couple, or in other word, discriminate. Hence the uproar at the passage of this piece of legislation.