Why Indiana’s Religious Freedom Law is a Big Deal

by Benjamin Studebaker

There’s a lot being said about Indiana’s recently passed Religious Freedom Restoration Act. Some people believe the law is innocuous–many other states (and the federal government) have religious freedom laws with seemingly similar language. Others claim the law is a naked endorsement of discrimination against LGBTs. I’ve spent much of my life in Indiana, and even I was not initially sure what the law actually does. So I’ve done some research, and I’m now prepared to share it with you.

The law was signed by Indiana Governor Mike Pence (R)–this guy:

Here’s the full text of the law. The core of the law is Section 8, which reads as follows:

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

On the surface, this sounds similar to other religious freedom laws currently in operation, but there are a couple major differences between the Indiana law and the other religious freedom laws you may have heard a lot about.

Firstly, the Indiana law does not exclusively apply to legal disputes between private actors and the government–it also applies to disputes among private actors. See Section 9:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

This means that private actors could appeal to this law to justify their treatment of other private actors. Here are a few hypothetical examples of this kind of private vs. private conflict:

  • A landlord refuses to rent to a gay couple for religious reasons.
  • A hotel manager refuses to rent rooms to gay couples for religious reasons.
  • An employer refuses to hire a gay person for religious reasons.

Secondly, the Indiana law allows people to object on religious grounds even when the religious conviction is not a closely held one. See Section 5:

As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Other religious freedom laws demand that the religious person establish that the belief is an important part of a larger system of beliefs, preventing religious people from making flippant claims against the state. In combination, these two provisions allow for very flippant claims against not merely the state but also other private actors.

Thirdly, and perhaps most importantly, Indiana does not have any state laws explicitly protecting LGBTs from discrimination. Indiana law prohibits discrimination on the basis of race, religion, color, sex, disability, national origin and ancestry, but not sexual orientation. The state government has a policy of not discriminating against LGBTs, and many individual cities and counties have laws protecting LGBTs from discrimination to varying degrees (including Marion, Monroe, and Tippecanoe counties and the cities of Bloomington, Evansville, Indianapolis, New Albany, South Bend, Lafayette, West Lafayette, Fort Wayne, Michigan City, and Terre Haute). But because there is no statewide policy, religious groups may argue that these local policies are in violation of state law. In parts of the state where there is no local protection, it will be very difficult to legally challenge any discriminatory behavior against LGBTs, because it will be very hard to show that the state has a compelling interest–there’s no evidence that the state of Indiana cares whether or not LGBTs face discrimination.

There is clear evidence that there are people in Indiana who are excited to use this law to discriminate against LGBTs. Advance America, an Indiana lobbying organization that pushed very hard for this legislation boasts about its victory on its website, explicitly telling its supporters the following:

Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women).  SB 101 will help provide the protection!

Here are just three examples where SB 101 will help:

  • Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
  • A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
  • A church should not be punished because they refuse to let the church be used for a homosexual wedding!

A joint letter written by an array of Columbia and Indiana University professors concurs with this analysis, predicting that the law will lead to endless litigation as religious actors challenge all kinds of laws on the basis that the state does not have a “compelling interest”:

…the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.

These professors are suggesting that not only could religious actors use the new law to discriminate in cases where there is no state-level protection, but that they could even attempt to use the new law to overturn other state laws. This means that while we will definitely see attempts to use the law to discriminate against LGBTs, there may be attempts to use the law to discriminate against other groups. While the courts may ultimately rule against those attempts at discrimination, the joint letter argues that the new law is so broadly written that the outcome of such decisions is unclear and may not follow past precedent:

This collision of public rights and individual religious beliefs will produce a flood of litigation, whereby Indiana courts will be asked to rebalance what has been a workable and respectful harmony of rights and responsibilities in a pluralistic society.

So at minimum, the new law will cause many people to attempt to discriminate against LGBTs and other groups, leading to protracted court battles. At maximum, there is reason to believe that religious people may win some or all of those battles, particularly in cases where there is no state law explicitly protecting the victimized group. Of all the groups that might be victimized on that basis, the most obvious one is LGBTs, who have the weakest legal protections in Indiana of all the groups that religious people might realistically target.

The criticism the Indiana state government is receiving is fair. The law is a radical expansion of religious rights at the potential expense of citizens and subgroups that the state of Indiana either does not wish to protect or cannot demonstrate a compelling interest in protecting within the confines of its extant laws. It is remarkable how hard the Indiana legislature and Governor Mike Pence have tried to mislead the general public about what the law does.

Many people (including influential LGBT rights activist George Takei) have responded by encouraging people to boycott Indiana. While it is important to draw attention to what this law does and encourage the Indiana state government to repeal, replace, or amend it, boycotts are a form of collective punishment. They would adversely affect many people who do not support the law, damaging Indiana’s economy and inflicting further pain on the state’s poor and unemployed, people who are already victims of the state government’s indifference in other policy areas. There are better ways to handle this. Activists should try to do any or all of the following:

  • Stage sit-ins and occupations at businesses that attempt to use the law to engage in discrimination.
  • Continue to write and publicize what the law does and why the law is not just.
  • Withhold electoral support for Mike Pence and for all those legislators who voted for the law (full voting lists are available for the house and the senate).
  • Challenge the law in the courts and attempt to get it overturned.

These tools should be more than sufficient to get this law changed.