April 10, 2015

Law clarifying Indiana’s RFRA raises unanswered questions

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

Amid the national media firestorm over misperceptions of the effects of the newly passed Indiana Religious Freedom Restoration Act (RFRA), state lawmakers passed a bill on April 2 to clarify RFRA’s intent. However, the clarification, which is popularly known as a “fix,” raises questions about religious freedom for citizens and religious institutions.

“The Church supports the efforts to address and correct the mischaracterization of Senate Bill 101 as a bill that promotes discrimination,” said Glenn Tebbe, executive director for the Indiana Catholic Conference (ICC), who represents the Catholic Church in Indiana on matters of public policy. “Dialogue to help all understand that the bill establishes a legal standard for judicial review of disputes is important.

“Defending dignity of all people means both upholding religious freedom and opposing unjust discrimination,” Tebbe added. “At the same time, people of faith should not be coerced to violate their conscience in their daily lives. The ICC continues to support Senate Bill 101, and believes it strikes the proper balance that has worked well in the federal RFRA for more than 20 years. While well-intentioned, the changes may undermine religious freedom.” (Related story: Indiana bishops issue statement on state’s religious freedom law)

The RFRA clarification bill, Senate Bill 50, prohibits a provider, including businesses or individuals, from refusing to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service.

Senate Bill 50 does not establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facility, 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.

The proposed language does exempt churches and other nonprofit religious organizations, including affiliated schools, from the definition of “provider.” Senate Bill 50 exempts from the “provider” definition a rabbi, priest, preacher, minister, pastor or designee of a church or other nonprofit religious organization or society when the individuals are engaged in a religious function of a church.

Tebbe said the new language raises questions, such as, “What’s the definition or limitation of a ‘religious function’? Are professionals, such as physicians, included? Does a ‘non-profit religious organization’ include hospitals? Other questions include: “How will Catholic colleges and universities be classified, or how will independent schools not connected to a parish be defined?”

Following days of intense negotiation, House Speaker Brian Bosma, R-Indianapolis, and President Pro Tem of the Senate, David C. Long, R-Fort Wayne, reached an agreement on legislative language contained in Senate Bill 50 to make clear that the intent of Indiana’s RFRA law is designed not for discrimination, but rather to require the state to pass a compelling interest test before it could restrict the free exercise of religion for any Indiana resident.

The announcement of the deal between business leaders, members of the lesbian, gay, bisexual and transgender (LGBT) community, House and Senate leaders, and the governor’s office came during a April 2 press conference, followed by a conference committee meeting to approve Senate Bill 50.

“Every Hoosiers’ rights are protected,” Bosma said, “Gay, straight, black, white, religious, non-religious. We value each and every Hoosier.”

Long said, “Religious rights and individual rights can coexist in harmony together.” He added that Hoosier hospitality is more than just a saying. “It’s a way of life here.”

Following a swift passage of Senate Bill 50, Gov. Mike Pence promptly signed it. “I believe resolving this controversy and making clear that every person feels welcome and respected in our state is best for Indiana,” he said.

Many Democrats, including House Minority Leader Rep. Scott Pelath, D-Michigan City, and Sen. Tim Lanane, D-Anderson, the Senate minority floor leader, said the “fix” didn’t go far enough, and wanted the Republican leadership to either repeal RFRA or add sexual orientation and gender identity to Indiana’s civil rights law. The Republicans were unwilling to make further changes.

Chris Douglas, a longtime member of the LGBT community in Indianapolis, who supports the clarification, said, “This statement is a stronger statement than a repeal” of RFRA.

Prior to the legislative clarification, the five Indiana bishops reiterated their support for RFRA, Senate Bill 101, by issuing their own statement on April 1. In addition to affirming religious freedom, the bishops restated the Church’s call for all people “to show mutual respect for one another.”

“We urge all people of good will to show mutual respect for one another so that the necessary dialogue and discernment can take place to ensure that no one in Indiana will face discrimination whether it is for their sexual orientation or for living their religious beliefs,” the bishops said.

While Indiana’s initial RFRA law did not mention sexual orientation, there were fears by the LGBT community that the law could potentially be used to deny services based on a person’s sexual orientation.

In the final week of March, Indiana joined 30 other states to provide a state legal framework of the federal Religious Freedom Restoration Act (RFRA). According to the National Conference of State Legislatures (NCSL), this year 12 states in addition to Indiana are looking to add a state RFRA to their respective state’s laws.

The original RFRA legislation, Senate Bill 101, which Governor Pence signed into law on March 26, prohibits state or local governments from substantially burdening a person’s ability to exercise their religion, unless the government can show that it has a compelling interest and that the action is the least restrictive means of achieving it.

(A statement from the Indiana Catholic Conference regarding the law clarifying Indiana’s Religious Freedom Restoration Act and more information about the ICC can be found at www.indianacc.org. Brigid Curtis Ayer is a correspondent for The Criterion.)

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