Last week Governor Mike Pence signed into law the Indiana Religious Freedom Restoration Act (IRFRA) which, in essence, provides that individuals and businesses in that state, if charged with violation of anti-discrimination laws, criminally or civilly, may invoke their sincere religious beliefs as a defense.
As noted in many media reports Indiana joins nineteen other states and the federal government in passing similar laws, or at least laws with very similar titles, though the wording may differ in significant ways.
What the law does not do is to permit racial or other forms of discrimination, most especially against the LGBTQ community, What it does do, in the simplest terms, is if there is an anti-discrimination law or ordinance in place, a person—as defined in this law—may use their religious beliefs as a defense to any action taken against them for discrimination in violation of such laws.
However, Indiana does not currently have a state law banning discrimination against the LGBTQ community, so members of that segment of our society were already subject to discrimination. The new IRFRA does nothing to change that situation.
An article written by an Indiana lawyer analyzes that state’s law and distinguishes it from those similar laws passed in other states.
Indeed, as Gov. Pence provided in his statement yesterday: “Fortunately, in the 1990s Congress passed, and President Clinton signed, the Religious Freedom Restoration Act—limiting government action that would infringe upon religion to only those that did not substantially burden free exercise of religion absent a compelling state interest and in the least restrictive means.”
The flaw in this implication is that it is misleading for several reasons. The federal act was deemed inapplicable to state actions. Consequently, several states have copied the federal act or have adopted similar legislation. A fair collection of all religious freedom statutes and court decisions can be found here. (Hats off to Liberty Counsel for making the effort to compile this list and publish it.) Upon my quick scan, Indiana’s version of the bill most resembles a similar law passed in Texas in 1999 but even that bill contains significant limitations that Indiana’s does not.
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 as seen below. The IRFRA adds several clauses which rightly give pause to the endless possibilities of using religion and religious freedom as a sword and a shield.
He notes how different the Indiana law is from other states and cites some cases already litigated in them.
First, the definition of “exercise of religion” does not require that it be compelled by, or central to, any system of religious belief.
Another objection he voices is that any “person” charged with discrimination may use his “exercise of religion” as a defense without involving the government entity that banned such discrimination as a party to the action.
But the most severe objection of all, is that the law is so poorly written as to be vague and/or ambiguous so that a proper interpretation of it and how far reaching it is is nigh impossible. That likely will result in prolonged, extensive, and expensive litigation as this is all sorted out.
As of this date the only governmental units in Indiana with such anti-discrimination laws or ordinances in place are the cities of Bloomington, Indianapolis, Evansville, South Bend, and the counties of Monroe and Marion. So the type of discrimination of concern here is not illegal elsewhere in the state.
So the protests against the law are not entirely misplaced nor is the concern expressed by a number of businesses such as the NCAA, Angie’s List, and others. Of course the jewel of the NCAA’s money generating machine, The Final Four, is in Indianapolis this next weekend.
So it could be that the first practical reverberations will be evident during this upcoming event. I have not heard of such plans but I imagine various advocacy groups could attempt to provide opportunities for businesses to discriminate to test the waters, so to speak.
As to the Tournament itself, a pox on all their houses, but their corruption is another issue.