Ruh Roh: Indiana’s RFRA
In response to a number of inquiries over the past week or so, following is some background and context for business owners regarding the Indiana Religious Freedom Restoration Act.
Indiana’s RFRA aims to prevent governmental entities of the State of Indiana from discriminating against those who exercise their religious rights. It does not authorize or provide license in any way for businesses to discriminate against gay, lesbian, bisexual, transgender, or any other, Hoosiers.
In 1993, then-President Bill Clinton signed the Federal Religious Freedom Restoration Act. Known as the “Federal RFRA,” it allowed the federal government to substantially burden a person’s exercise of religion only if it (1) demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and (2) it demonstrates that the burden used is the least restrictive means of furthering that compelling governmental interest.
Constitutional law folks refer to this as “strict scrutiny,” one of a few different balancing tests used to determine the validity of a particular law. Law schools teach this to all first year law students, regardless of whether they intend to practice constitutional law or not. Simply put, constitutional balancing tests are conducted to make sure that the government doesn’t always win.
The Federal RFRA applies to all religions, but was enacted amidst concerns largely pertinent to the Native American community, which was experiencing points of conflict with the federal government over use of its lands — especially those parts involving religious ceremonies.
In 1997, in a case called City of Boerne v. Flores, the U.S. Supreme Court held that the Federal RFRA was unconstitutional as applied to laws passed by state and local governments. The conflict in City of Boerne was between the Catholic Archdiocese of San Antonio, which had plans to enlarge a church in Boerne, Texas and the City of Boerne, which had an ordinance that prevented the existing church building from being torn down because it was a historical landmark. After City of Boerne, the States could enact their own provisions regarding their own state laws on the point of religious freedom.
A number of states did. Some developed religious protections through state court decisions. Others, like Indiana, adopted specific laws. Courts that developed RFRA-like protections used the balancing test codified by both the federal and state laws.
One characteristic of Indiana, which seems to have touched off the vitriol both at and inside the state, has less to do with the language of the state’s RFRA than it does the fact that Indiana, both at the State and many local levels, does not recognize sexual orientation as a class protected from discrimination.
Indiana has a longstanding policy, codified in Ind. Code 22–91–12, against discriminating upon race, religion, color, sex, disability, national origin, ancestry or military service, as such is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the public policy. It is also the policy of the state to protect employers, labor organizations, employment agencies, property owners, real estate brokers, builders, and lending institutions from unfounded charges of discrimination.
However, some other states that have RFRA laws, like Kansas, also protect sexual orientation from discrimination. The absence of a similar protection has led some to see the Indiana RFRA as creating a loophole to allow Hoosier business owners to discriminate against those in that class. This is the common “gay wedding photographer” and “cupcake” hypothetical.
In fact, Indiana’s RFRA statute is nearly the same as Federal RFRA. As of July 1, 2015, an Indiana governmental entity may substantially burden a person’s exercise of religion if it demonstrates that 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.
Last Friday, lawmakers amended the law to clarify that Indiana’s RFRA does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military services; or (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military Service.
The clarification adds a couple classes to the others mentioned at the outset.
The RFRA is being touted as good for business by larger corporate stakeholders and the convention and sports industry. While the RFRA looks to some like a niche issue involving the Amish, bakers and wedding photographers, its yet to be seen what happens when the discussion moves to pharmacies, doctors, and real estate, to name a few. While the law on its face applies only to dealings between governmental entities and businesses, and does not create wholesale causes of actions or defenses, its well to note that it was modified at warp speed in the midst of the Final Four, amidst great pressure and a threatened mass corporate exodus. Some uncertainty can be anticipated, so business owners concerned about the potential impact of a decision about with whom they will do business are best to get some guidance before implementing a particular plan.