April 3, 2015

Religious freedom legislation becomes Indiana law

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

Indiana residents of all faith traditions can be assured that the government will not infringe upon their constitutional right to freely exercise their religious beliefs because of a law passed by the Indiana General Assembly and signed into law by Gov. Mike Pence.

During the final week of March, Indiana joined 19 other states to enact a state-level version of the federal Religious Freedom Restoration Act (RFRA), with Governor Pence putting his stamp of approval on it on March 26.

The legislation, Senate Bill 101, received a large majority of support from both chambers. The Senate passed the bill 40-10, and the House approved it by a 63-31 vote.

“This bill is not about discrimination,” Pence said at the signing ceremony, “and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

The governor added, “Indiana is rightly celebrated for the hospitality, generosity, tolerance and values of our people, and that will never change. Faith and religion are important values to millions of Hoosiers; and with the passage of this legislation, we ensure that Indiana will continue to be a place where we respect freedom of religion and make certain that government action will always be subject to the highest level of scrutiny that respects the religious beliefs of every Hoosier of every faith.”

In the days that followed Pence’s signing of the religious freedom law, critics of it across the state and around the nation raised concerns that RFRA is a vehicle of legal discrimination against homosexuals or others. A call to boycott the state has been sounded, and many business leaders have publicly criticized the law.

In response, House Speaker Brian Bosma and Senate President Pro Tem David Long announced that the General Assembly will consider legislation that would clarify the religious freedom law.

Glenn Tebbe, Indiana Catholic Conference executive director, who represents the Catholic Church in Indiana on matters of public policy, said, “This legislation will protect all faith traditions from government interference in the free exercise of religion. The legislation will help resolve disputes rather than create them.”

Richard Garnett, a law professor at the University of Notre Dame in northern Indiana, in an opinion column in the March 26 issue of the South Bend Tribune, described the state’s RFRA as a “moderate measure” modelled after the federal religious freedom law and those of several other states that “does not give anyone a ‘license to discriminate.’ ”

He noted that the more than 20 years of history of the applying of RFRA statutes to specific cases shows that courts across the country “have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections.”

Instead, Garnett pointed out, religious freedom laws have helped people of a broad variety of faiths.

“In practice, over the last two decades or so, religious freedom restoration acts have been used not to excuse illegal discrimination or harmful behavior but instead to secure humane accommodations,” Garnett said, “such as allowing members of a small Brazilian church to possess plants that are necessary to make sacramental tea, or preventing the government from firing a Rastafarian with a traditional haircut, or respecting a family’s religious objections to an autopsy of their loved one.”

Indiana University Maurer School of Law Professor Daniel Conkle has repeatedly sought to debunk the claims that RFRA allows for discrimination, citing current legal cases in support of his position. He testified during the House and Senate hearings on the bill, and reiterated his position in a recent opinion column in The Indianapolis Star.

Conkle, a constitutional law expert who supports gay rights and the redefinition of marriage, said the RFRA legislation has “little to do with same-sex marriage and everything to do with religious freedom.”

He added that “most religious freedom claims have nothing to do with same-sex marriage or discrimination.”

Conkle said in his column the law is “anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.” According to Conkle, even in the narrow setting of wedding service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted RFRA legislation.

In addition to explaining what RFRA wouldn’t do, Conkle said in testimony before committees in both the House and Senate that a state RFRA would establish a general legal standard, the “compelling interest test,” for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion.

In spite of Conkle’s expertise in expressing that this was not a discriminatory law, several members of the House spoke out against the bill during the House floor debate.

Rep. Ed Delaney, D-Indianapolis, called the bill “futile and destructive,” adding that he felt the bill would allow discrimination. House Minority Leader Rep. Scott Pelath, D-Michigan City, also raised concerns, saying that he also believed the bill would permit discrimination. Two African-American lawmakers, Rep. Vernon Smith, D-Gary and Rep. Cherrish Pryor D-Indianapolis, said even though they were devout Christians they were opposed to the bill given their belief that the legislation could potentially cause discrimination.

Rep. Tom Washburne, R-Evansville, explained that the religious freedom law assists the courts in determining what happens when a fundamental right and a government interest come into conflict. When a conflict arises between a fundamental right and the government, the government must have “a really good reason” or what is called in the law a compelling government interest, he said.

Washburne added that the basic analysis of fundamental rights as it relates to a government compelling interest has been applied for many decades, and because of this legislation, this standard will be applied to cases involving the free exercise of religion.

The federal Religious Freedom Restoration Act was passed by Congress on a broad bipartisan basis and signed into law by President Bill Clinton in 1993. The federal legislation, authored by Sen. Charles Schumer, D-N.Y., applies only to federal law. As a result, beginning also in 1993, states began adopting RFRA laws. Counting Indiana, 20 states have passed RFRA legislation, and 11 state constitutions have been interpreted to mandate the compelling interest test when cases of the exercise of religion are substantially burdened.

Indiana’s religious freedom legislation mirrors the federal RFRA. The legislation takes effect on July 1.

(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. Reporter Sean Gallagher contributed to this story.)

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