Does Indiana’s “Religious Freedom” law create a defense against private discrimination suits?
I wrote a rant the other day about Indiana’s new Religious Freedom Restoration Act. Apparently, I had nothing to say about the very section that has generated the most ire.
I’ve come across several articles from learned people who insist that Sec. 9 of the Act provides business owners with a private defense against discrimination actions. See, for example, Mother Jones’s Sorry Mike, Indiana Is Neither Kind Nor Welcoming to Gays Anymore. That article cites Garrett Epps, a Constitutional Law professor at the University of Baltimore, who wrote for the Atlantic in a piece entitled, What Makes Indiana’s Religious-Freedom Law Different?:
The new Indiana statute also contains this odd language: “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.” (My [emphasis]) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language. … The Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.
With respect to the good professor, I did not read the law this way. I read the law consistently with Governor Pence’s interpretation, under which the law applies only to government actions. I think the context of the section supports the Governor’s interpretation. Most sources I’ve found on the web claiming that Sec. 9 creates a defense against private discrimination suits do not include the full section, a useful portion of which I’ve emboldened for emphasis.
Sec. 9. 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.
By its terms, this Sec. 9 applies only to “violations of this chapter”. Under Sec. 8, the chapter is purely a prohibition on government action:
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
The chapter prohibits only government-created burdens on religion. Private parties do not violate the chapter by bringing private discrimination suits against a business owners. Therefore, Sec. 9 would not apply to private discrimination suits.
The oft-neglected emboldened portion of Sec. 9 further supports the governor’s reading by specifically referencing the “relevant governmental entity” that has created the burden issue in the private suit. When a private party such as a gay customer sues a business for discrimination, there is no “relevant government entity” that might intervene.
The law does not contain language to suggest that there might not be such governmental entity. It does not say, for example, “If any relevant governmental entity ... ,” or “The relevant governmental entity, if any, … .” It says simply, “The relevant governmental entity …,” which suggests to me that there will be a “relevant governmental entity” in all applications of Sec. 9. As I read the section, it was intended to apply only to cases in which a government entity, as a third party, imposed a burden on some private business defendant to the further detriment of some private customer plaintiff.
I foresee an objection that the court might become “the relevant governmental entity” once it finds in favor of a gay customer in a discrimination suit, and therefore burdens the business defendant by ordering it to provide the disputed service. I don’t believe this interpretation to be realistic. If the court were to order a business owner to serve a gay customer against the owner’s religious convictions, it would surely do so under the specific authority of Sec. 8(b), and therefore not in “violation of this chapter”.
If the purpose of Sec. 9 is not to give business owners a defense against discrimination suits, then what is its purpose? I’ll offer a hypothetical that I think demonstrates the purpose of this section:
Suppose I make burqas in Indiana. Suppose I do a lot of business. Suppose I have an order for 1,000 burqas that I need to ship out by the end of the month. Suppose that, during the month, the government of Indiana passes a law burdening the exercise of Islam by banning the sale of of burqas in the state. Suppose that, under this burden, I delay my shipment of burqas. Suppose my customer sues me for breach of contract for failure to deliver the burqas as agreed under the contract.
In this case, I would have a defense under Sec. 9 that I did not ship my burqas on time because the government burdened my exercise of religion, and therefore I should not be liable for breach of contract. “The relevant government entity” in this case would be whatever legislature or government agency passed the law or issued the rule that banned the burqa. That agency then reserves the right to intervene in the proceedings to either defend the rule or explain its application. It should go without saying that I would also have a claim against “the relevant government entity” for burdening my burqa business in violation of Sec 8.
Again, when I first read Sec. 9, I found it to be such a minor point that I didn’t bother mentioning it in my other post, but apparently everyone who opposes Indiana’s Religious Freedom Restoration Act, including some Constitutional Law professors, read it differently than I did. Any law lends itself to such variety of interpretation should probably be amended on that account, but I stand by my original reading of the Sec. 9: It was not intended to create a defense for businessmen against discrimination suits. I think the governor correctly understood the law he signed.
[UPDATE 1: I’ve considered the further potential objection that the “relevant government entity” might be the one that passed an anti-discrimination law that protects gays from discrimination on the part of business owners. I’m not sure if there is such an anti-discrimination law in Indiana, but let’s consider the case in which there is, using the cake example:
If a baker refuses to bake a cake in violation of an anti-discrimination law, and gets sued for discrimination, then the “relevant government entity” would be the one that passed the anti-discrimination law. But if there is an anti-discrimination law on the books to argue over, then isn’t the gay community already winning? And if the Indiana legislature passed its Religious Freedom Restoration Act despite there already being an anti-discrimination law, wouldn’t that suggest the legislature finds no conflict between the two, and that the anti-discrimination law furthered a compelling government interest? And if the legislature intended for the Religious Freedom Restoration Act to conflict with and to trump any existing anti-discrimination law, don’t you think maybe they would have just repealed the anti-discrimination law?
I can understand the argument that perhaps the Religious Freedom Restoration Act might imperil an anti-discrimination law by enabling a court to rule that an anti-discrimination law does not further a compelling government interest — but that hasn’t happened yet. The worst the critics can say at this point is that it might happen, or that it is poised to happen, or something like that, if they have a good reason to believe it. In any case, Indiana is not now, currently, the civil rights disaster that critics claim it to be on account of this Religious Freedom Restoration Act, and it won’t be a disaster until an Indiana court interprets it to be.]
[UPDATE 2: In a post entitled Mike Pence: Our Religious Freedom Law Ain’t Broke, But We’ll Fix It, Reason.com just answered question I left dangling in Update 1. Are there any anti-discrmination laws in Indiana? Jacob Sullen writes for Reason:
RFRA’s impact on such cases is currently relevant only in Indianapolis, Bloomington, and South Bend, which prohibit discrimination based on sexual orientation. State law does not, so the “license to discriminate” that worries RFRA opponents already exists in most of Indiana. …
University of Virginia law professor Douglas Laycock, … notes that “nobody has ever won a religious exemption from a discrimination law under a RFRA standard.”
The state of the law in Indiana is this: In Indianapolis, Bloomington, and South Bend, anti-discrimination laws currently co-exist with Indiana’s Religious Freedom Restoration Act. Although there is a first time for everything, history has not favored any attempt to use a religious freedom law to overturn an anti-discrimination law.
For the rest of the state, there is no anti-discrimination law in effect. Gay customers simply have no state claim against business owners who refuse them service. They never did, and this law creates no defenses against claims that have never existed. If a gay person elsewhere in the state tried to bring suit against a business owner for denial of service, there would indeed be no “violation of this chapter”, and Sec. 9 would not apply. In fact, I imagine the case would simply be dismissed for failure to state a claim upon which relief can be granted.
Instead of protesting Indiana’s Religious Freedom Restoration Act, the gay community and its supporters should mobilize to have a state-wide anti-discrimination law passed. Then they should protest if an Indiana court ever strikes that anti-discrimination law down on religious freedom grounds. ]
