POLITICS

How Indiana's RFRA differs from federal version

Kristine Guerra, and Tim Evans
Indiana Gov. Mike Pence addresses the media about changes he wants made to the recently signed Religious Freedom Restoration Act, Indianapolis, Tuesday, March 31, 2015.

Is Indiana's Religious Freedom Restoration Act the same as the federal version that became law two decades ago? Not quite.

Indiana's RFRA is similar, but not identical. And there's debate about how much those differences matter.

Proponents say Senate Bill 101, which was signed into law by Gov. Mike Pence last week, is virtually the same as the federal statute. It prohibits the government from substantially burdening a person's ability to practice his or her religion — unless the government can show it has a compelling interest to do so. And the government must choose the least restrictive way to achieve its goal.

Others, however, have emphasized the differences in the laws, saying the Indiana law is written more broadly than its federal counterpart.

One of them is U.S. Sen. Chuck Schumer who, along with Sen. Ted Kennedy, introduced the federal RFRA when he was a congressman in 1993. The Democrat from New York said on his Facebook page that saying the two laws mirror each other is "completely false" and "disingenuous" and called on Pence to stop making such comparison.

Schumer cited what he called "significant, legal differences" and said the Indiana law "in no way resembles the intent or application of the federal RFRA."

Here are ways the laws differ and what opponents and proponents say the differences mean:

1) Unlike the federal law, the Indiana bill explicitly protects the exercise of religion of entities, which includes for profit corporations.

The law

A highlighted section of the Indiana Religious Freedom  Restoration Act, Section 7 of the bill.

Opponents

Opponents of the bill say it would grant religious liberty rights to any corporation, any group of people and any business, regardless of whether or not members of that corporation or business share a religious belief. The federal law grants such rights only to people, nonprofit organizations and, in the case of the often-cited Hobby Lobby ruling, to closely-held corporations where owners share the same religious beliefs.

That difference is a concern, said Katherine Franke, a Columbia University law professor, because the law would grant religious rights to broad entities.

"It completely expands the idea that anything can have a right to religious liberty even if they're incorporated for secular or commercial purposes," said Franke, who's one of 30 legal scholars who raised concerns about RFRA in a letter to Rep. Ed Delaney last February. "We haven't seen this broad definition."

Indianapolis attorney William Groth said such broad definition of religious practice may cause courts to conclude "as long as a belief is in the person's own scheme of things grounded upon religious belief," the government will be hard pressed to defend certain laws.

"For example, I can envision the state having to prove a compelling interest for state laws which prohibit the use of marijuana or other psychoactive substances when used as part of a particular religion's rituals or sacraments," Groth said.

Supporters

Supporters say that although the language is not verbatim, it's the same.

Douglas Laycock, a law professor at the University of Virginia, cited the Dictionary Act of the United States Code, which defines a "person" to include corporations, companies, associations, firms, partnerships, societies, joint stock companies, as well as individuals. That language, which the Supreme Court justices used in deciding the Hobby Lobby case, is present in Indiana's RFRA.

Laycock is one of 16 legal scholars who, last February, sent a letter to Sen. Brent Steele supporting RFRA. He also said although businesses or corporations may file claims on the grounds of religious exercise, they have no assurance of victory.

"It means they're covered by the statute," Laycock said. "It doesn't mean that they will prevail in court."

2)The bill's protection of religious liberty may be invoked not only when a person's religious freedom has been burdened, but also when it is likely to be substantially burdened by government action.

The law

A highlighted part of Section 9 of the Indiana Religious Freedom Restoration Act.

Opponents

Franke said the word "likely," which is not in the federal version, "expands the kinds of claims that people can bring."

"If some state action is likely to create a substantial burden on a sincerely held religious belief, then the government has to come forward and come up with a very compelling reason for why they have to have this policy," Franke said.

Supporters

Laycock said this is a non-issue because the federal law has been interpreted as if the word "likely" is in the language. One does not have to be already injured or burdened to file a lawsuit.

"That's about injunctions. If you've actually been hurt by somebody violating the law, you can sue for compensation," Laycock said. "If you haven't been hurt yet, you can sue for an injunction to prevent the violation, keep yourself from being hurt."

3) The bill appears to allow using exercise of religion as a defense in judicial or administrative proceedings between private parties.

The law

A highlighted part of Section 9 of the Indiana Religious Freedom Restoration Act.

Opponents

Sarah Warbelow, legal director of the Human Rights Campaign, the nation's largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, said this provision means people will be able to use their religious beliefs as a defense if they're sued for discrimination by another individual. In other words, opponents say, a photographer can use RFRA as a defense if he or she is sued for refusing to photograph a gay or lesbian couple's wedding.

"This has a potential negative effect on all areas of non-discrimination law that exist for LGBT people," Warbelow said.

Supporters

Laycock said this provision addresses an unintended ambiguity in the federal RFRA and restores the original understanding of that law.

"The federal RFRA was clearly intended ... to make clear that it applied to suits against the government," Laycock said. But ambiguity in the language resulted in split decisions by the lower courts as to whether RFRA can be used as a defense in private lawsuits.

He also said that in discrimination cases, "the religious side always loses."

"It doesn't matter whether you get sued by the gay people or the government," Laycock said. "If the burden is imposed by the law that says if you have to do gay weddings, if that's a burden on your religion, it doesn't matter to the religious side who's suing to enforce the law to do the burden."

Laycock said much of the concern about this provision is based on hypothetical situations.

"Every judge in every case has said that nondiscrimination laws serve a compelling interest," he said. "They're worried that some red state judge somewhere will do the other way around. That's never going to happen."

***

Gov. Pence and the state's Republican leaders have faced a firestorm of criticisms from civil rights groups, top business executives and other government officials who fear the law will allow discrimination based on sexual orientation.

Indianapolis Mayor Greg Ballard has asked Pence and the Indiana General Assembly to either repeal RFRA or add explicit protections for sexual orientation and gender identity in state law, which exist in some other RFRA states.

Texas, for instance, expressly provides that the religious freedom law can't be used as a defense against a civil rights ordinance, Groth said.

For some, the absence of such protections in Indiana's law is telling, given last year's federal decisions that struck down Indiana's ban on same-sex marriage.

Frank Sullivan Jr., who served on the Indiana Supreme Court from 1993 to 2012, said RFRA was a "code for 'we need to deny gay and lesbians the civil rights they are asserting.'"

He said that is obvious because the same people — including lawmakers and lobbyists — who were pushing for the failed constitutional ban on same-sex marriage are now behind the RFRA law. In his recollection of the past four decades, infringement of religious freedom has not been an issue in the state.

"I view this as being a purely political issue," he said.

Eric Miller, founder and executive director of the conservative advocacy group Advance America, has made statements that appear to support that claim.

"Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!" Miller said in the statement posted on his website. "A church should not be punished because they refuse to let the church be used for a homosexual wedding!"

Miller, a strong supporter of RFRA and a failed ban on same-sex marriages, is one of those who were invited in the private signing ceremony of SB 101 in Pence's office.

Some supporters, however, dismiss the timing as coincidental and say the bill is long overdue in Indiana.

"There has been an ongoing effort for years to enact (RFRA) laws all over the country," said Michael McConnell, a Stanford University law professor who supports RFRA.

In response to what Pence referred to as a gross mischaracterization of the bill, he said during a press conference Tuesday that he wants to move legislation that makes it clear that RFRA does not give businesses the right to deny services to anyone.

Details of the new language are still being worked out, Pence said.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.