February 20, 2015

Religious freedom legislation advances in Indiana Senate

A view of the Indiana Statehouse in Indianapolis. (File photo by Natalie Hoefer)

A view of the Indiana Statehouse in Indianapolis. (File photo by Natalie Hoefer)

By Brigid Curtis Ayer

Legislation to safeguard religious freedom in Indiana laws advanced in the Senate last week.

The Senate Judiciary Committee on Feb. 9 heard testimony on Senate Bill 101. If passed and signed into law, it would serve for state laws the same purpose that the Religious Freedom Restoration Act (RFRA) does for federal laws. RFRA, which became law on a broadly bipartisan basis in 1993, forbids that federal laws substantially burden a person’s free exercise of religion. It also states that any burden on religious freedom must use the least restrictive way possible and can only be set in place if there is a compelling government interest.

The federal law played a central role in the U.S. Supreme Court’s decision last summer that ruled that owners of closely held businesses cannot be required by the federal Health and Human Services administration’s mandate requiring all employers to provide free of charge abortifacients, sterilizations and contraceptives to their employees if they oppose these medicines and procedures on religious grounds.

Glenn Tebbe, executive director of the Indiana Catholic Conference (ICC), testified before the panel in support of the bill.

“Religious freedom doesn’t just apply to worship on Sunday or in our homes, but it involves enabling us to live our lives of faith in the community,” he said. “The Catholic Church has done this for hundreds of years. We are provided an opportunity to serve the common good in the secular sense, while we live out our faith.”

Sen. Scott Schneider, R-Indianapolis, co-author of Senate Bill 101, said the goal of the legislation is to create a workable test striking a sensible balance between religious liberty and competing prior governmental interests. “The purposes of this act are two-fold,” he said. “It is to restore the compelling interest test and guarantee its application in all cases where free exercise of religion is substantially burdened, and to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”

Schneider explained that the religious freedom bill establishes restoring the compelling interest test, meaning the religious practitioner must prove that his or her practice of religion has been substantially burdened by a state law or regulation. If this is determined to be true, the state government may then establish that it is a compelling interest for it to do so. Even if such an interest is shown, the state government must use the “least restrictive” means in setting up a burden on religious liberty.

“This sets a foundation and framework for what government must do, and what tests they must pass before it restricts religious freedom,” Schneider said. Sen. Dennis Kruse, R-Auburn, is also a co-author of the bill.

Currently, 19 states have passed state-level RFRA legislation, and 10 states’ constitutions have been interpreted to restore the compelling interest test when cases of the exercise of religion are substantially burdened.

Father David Mary Engo, superior of Franciscan Brothers Minor in Fort Wayne, told the panel that freedom of religion is not simply the right to worship, but to serve.

Citing the parable of the Good Samaritan, Father David said Christians are called to serve without discrimination. “It has always been the Judeo-Christian faith that has taught us that faith must be expressed, acted upon, and lived in the church, at home, and in the public square,” he said. “St. James tells us, ‘Faith without works is dead’ (Jas 2:26). My religious community of Franciscans and I continue this work. Our faith cannot be truly alive if Christians do not have the freedom to not only worship our God, but to serve him. Serving our God has always been the business of the Church.”

Father David noted that Indiana is home to three-quarters of a million Catholics, with more than 400 Catholic churches, 20 Catholic hospitals, 20 Catholic nursing homes, and more than 200 institutions of Catholic learning ranging from pre-kindergarten to graduate school. “Where there is a need, the Church is there to help,” he said.

Peter Breen, special council for the Chicago-based St. Thomas More Society, said that the proposed Indiana RFRA law is not about “re-setting a right, but to put a broad fence around it.” Breen, a constitutional lawyer added, “When we are looking at our core fundamental rights, free speech, free exercise of religion, a prudent lawmaker puts a broad fence around it.” Breen, who serves as a state legislator in Illinois, called RFRA legislation making “rare moments” for legislators.

Fiona Devan, who represented the Columbus-based Cummins Inc., spoke in opposition, saying that the bill would cause potential liabilities in their ability to attract the best and brightest people to work for them because it sends an inhospitable or discriminatory message. It could also disrupt their company’s policies to make reasonable religious accommodations for their employees, which they are currently making.

Jane Henegar, who represents the Indiana chapter of the American Civil Liberties Union (ACLU), also opposed the bill. She said that while the ACLU has for many years defended religious liberty, in more recent years the civil rights community has consistently expressed concerns about religious liberty protection, such as RFRA. They might create unintended consequences, namely a violation of civil rights, she said.

Constitutional lawyers who testified said that Indiana’s proposed RFRA law does strike a reasonable balance between free exercise of religion and any state compelling interests including civil rights laws.

Senate Bill 101 is expected to be voted on by the Senate the last week of February.

(For more information about the Indiana Catholic Conference, its Indiana Catholic Action Network and the bills it is following in the Indiana General Assembly this year, log on to www.indianacc.org. Brigid Curtis Ayer is a correspondent for The Criterion.) †

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