Indiana has been in the news for the last week, and not for a good reason. Last week, Indiana Governor Mike Pence quietly signed into law the state's Religious Freedom Restoration Act (RFRA), which in many ways mirrors similar statutes enacted in 19 other states.
Gay rights advocates pointed out, however, that the Indiana law differs significantly from other laws in that it may allow "religious freedom" as a defense to discrimination even in civil causes of action, and even allows corporations to discriminate, with the ability to assert religion as a defense.
Freedom for Whom?
Almost immediately after Pence signed the law, the criticism began. Salesforce CEO Mark Benioff announced he was canceling all future corporate events in Indiana. Angie's List put a stop to plans to expand its Indianapolis headquarters. Several cities and states have also put a stop to government-funded trips to Indiana.
RFRA's supporters contend that the law is merely intended to correct a problem the U.S. Supreme Court caused in 1990 -- which is facially true. The Court's opinion in Employment Division of Oregon v. Smith altered the test for determining when government could burden the free exercise of religion. Instead of requiring the "least restrictive means of furthering a compelling government interest," Smith brought the standard down to neutral laws of general applicability, meaning that a law that was neutral with respect to religion wasn't unconstitutional even if it had the incidental effect of burdening religion.
State RFRAs restore the old, pre-Smith standard. Other RFRAs also allow religious practice to be used as a defense where the government is a party to the case. So, where a state agency brings an employment discrimination claim or where a state law prohibits discrimination on the basis of sexual orientation, a state RFRA allows a person to defend that suit on the grounds that discriminating on the basis of sexual orientation is part of the defendant's religion.
Indiana's law, though, does them two better. First, it allows religion to be used as a defense in cases where the government isn't a party. Second, it allows corporations to assert the free exercise right, as well. Consequently, say opponents of the law, an Indiana business could refuse to provide services to gays and lesbians on the ground that doing so would violate company's religion as a whole.
Part of a Trend
Over the weekend, Pence refused on television to say that he was definitively against discriminating against gays and lesbians. This week, however, he seems to have had a change of heart. Now he's demanded a clarifying bill that would say the RFRA doesn't authorize discrimination in providing goods or services on the basis of sexual orientation or gender identity.
The news in Indiana put the brakes on similar legislation that had already passed the legislature in Arkansas. Governor Asa Hutchinson asked the legislature to modify the language of that state's RFRA bill to remove language that, like Indiana's, would allow defendants to assert religion in claims brought by other individuals.