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The State of Indiana is getting flack for passing a "religious freedom restoration act" (RFRA) that critics say would allow businesses to legally discriminate against gays and lesbians.
Indiana joined a significant minority of states (20 with laws actually on the books) in enacting such a law, including all three states in the Eleventh Circuit. Are these states' laws significantly different?
It's Just Religious Freedom
RFRAs take an on an innocuous form. They say merely that a state burden on religious practice must be limited to the "least restrictive means of furthering a compelling government interest," which used to be the official Supreme Court test for burdens on free exercise of religion.
Then, in a 1990 case called Employment Division of Oregon v. Smith, the Court said states could pass neutral, generally applicable laws that had the effect of burdening religious practices -- a significant decrease in religious protection. In response, Congress passed a federal RFRA, which re-established compelling interest as the test nationwide. The Court, however, struck that down in City of Boerne v. Flores because Congress couldn't tell states what constitutional test to adopt for themselves.
Following Flores, states decided to create their own RFRAs.
RFRAs in the Eleventh Circuit
Of the three RFRAs in the Eleventh Circuit, only Alabama's, passed in 1998, is a state constitutional amendment. It states that government can burden religious activity only by asserting a compelling interest and by using the least restrictive means of furthering that interest.
The operative part of the law is this one: "A person whose religious freedom has been burdened in violation of this section may assert that violation as a claim or defense in a judicial, administrative, or other proceeding and obtain appropriate relief against a government." That means a state employment agency, for example, couldn't sue an employer who refused to hire a person because the person was gay.
In fact, Georgia's law received attention last week after one lawmaker tried to insert a provision declaring that the law must not be interpreted to legalize discrimination. Interestingly, state representative Barry Fleming said, "This is the amendment that will gut this bill," suggesting that the purpose of the statute was to discriminate, after all.
The amendment passed, but now the bill has been tabled -- and given the furor over Indiana's law, it may remain there indefinitely.
The difference between the RFRAs in Alabama, Florida, and Georgia and the one in Indiana is a little bit of language. Indiana's law allows religious freedom to be asserted as defense whether or not the state is a party to a discrimination claim, meaning it protects against civil causes of action. Indiana's law also applies to corporations, in keeping with the post-Hobby Lobby zeitgeist that corporations have religious beliefs.
In that case, those religious beliefs justified denying contraceptive coverage to women on the basis of religion. In Indiana, the fear is that religious beliefs will allow corporations to shut out gays and lesbians because such discrimination is integral to the corporation's religion.