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.
Benjamin Studebaker 
It seems like people are very much in arms (almost literally) about what this law MIGHT do. I’ve seen it compared to open Sharia Law, free license for bigotry, and all manner of other ridiculous claims. Does it really seem likely (in your opinion) that there will be a sudden surge of discrimination across the board? Isn’t it far more likely that life will continue as it has been?
While I agree that the law should probably be amended to be more specific, we’re talking government intrusion into private liberty here. As in the cases of bakers, florists, etc., who have been forced to provide services against their will, yes? Regardless of how…repugnant we may find these people who refuse services or proudly and maliciously slander whole groups, shouldn’t we protect their right to do so as free speech?
I know you’ve some economic background, and the concepts of ‘free market’ and ‘market correction’ are misleading at best, but won’t these people inevitably find they are losing business and either change their tune or change their vocation? That seems logical to me, and goes hand in hand with absolute freedom; not to be confused with anarchy, because clearly your right to exercise your religion has no right to infringe on my own rights. But no one has the RIGHT to service from another, that’s indentured servitude or slavery. Should any of the above named entities decide not to accept business from gays (or Muslims, Jews, the KKK, or even Asatru), isn’t that between them and Allah, Jehovah, the Grand Vizier or Odin?
Sorry, bit of a ramble, but the main argument against this seems to be that it COULD ALLOW or MIGHT CAUSE, and we shouldn’t be in the business of predetermination or supposition.
I agree that widespread discrimination is not likely–the group of people who want to do this is a small fringe minority.
That said, I think “might cause” and “could allows” are important and should be considered, because laws often have potential unintended consequences that good legislators should anticipate and avoid. The real question here is whether these possible unintended (we hope) consequences are really all that serious, and, if so, why.
I would say that your argument about non-seriousness is predicated on the assumption that most people will not participate in the discrimination (and that those who do will lose business). But while this is likely in practical terms, the law must also account for what’s possible. What if most citizens and businesses subsequently decided to engage in this discrimination and socially rewarded each other for doing so? This is more or less what happened in the south when discrimination against blacks was commonplace, and the effect was to create a very unwelcoming environment for blacks, one in which they could not feel that they were equals in the community. People aren’t going to respond that way in Indiana realistically today, but this is a function of public opinion, which is subject to change. Whether or not a subgroup faces discrimination should not depend on public opinion.
I’d also add that businesses are often licensed by the state and always enjoy the use of the state’s infrastructure, resources, property laws, and so on. This gives the state a legitimate say over how businesses conduct themselves–it has the power to regulate commerce, particularly to advance the values that it needs to uphold to preserve political and economic stability (like a sense among people that society is inclusive toward them and treats them in a fair and/or equal way).
If you don’t find that persuasive, I would also add that there is potential for more insidious discrimination than mere denial of service to customers. Businesses could also potentially refuse to hire gays, turning their sexual orientation into an economic impediment and denying them fair equality of opportunity. The state has a duty to its citizens to protect their equal status. It is also economically inefficient to decline to use capable workers on an arbitrary basis (i.e. one that has nothing to do with job performance). Even if this doesn’t happen widely, it would be a very serious harm for each person it did happen to.
I totally agree with the more subtle discrimination possibility, and I think that THAT sort would be far more likely simply BECAUSE it’s more subtle. An employer would never have to reveal the reasons for not hiring someone, and should a….cabal, I guess is the right word, should a cabal form to refuse employment to gay people (why is it always gay folks in this argument? Why not any other group?) then the repercussions could be devastating.
I’m really of two minds about the law itself. I very much believe that we need a freedom clause relating to religion, but not one that can be abused. That said, there’s no law in existence that CAN’T be abused in some way, so it’s always the lesser of evils.
The flip side is the forced business, as I mentioned earlier. While I find it morally repulsive to refuse service to someone simply because one doesn’t agree with their lifestyle or heritage, one of the core foundations of our country is the freedom to do so. As in the case of the Lakers owner (whatever his name was) being ousted for being a bigot. He had the absolute right to express himself that way, even though it makes him a disgusting human being. We’ve gotten to the point, (or soon will) where people are being destroyed for having opinions or dissenting from the common narrative, and that way lies madness.
So the SB101 maybe should be scaled down a bit, but the response to petty complaints of discrimination (the baker won’t make me a gay pride cake, or the t-shirt printer won’t make gay pride shirts) should be dismissal, as well. Real discrimination, of the Jim Crow and KKK type, should absolutely be punished swiftly, openly, and severely, but the kind that results in hurt feelings and nothing else?
I don’t know, man, it’s tough to articulate, but as long as social opinion says that the LGBT community should never come up against any opposition then we’re going to be stuck with this intense polarization until something breaks.
I strongly agree with you that we’re penalizing people for having repulsive opinions in a way that is counterproductive, unduly limits freedom of expression, and reduces the scope and sophistication of our debates (This has been an idea I’ve been pushing for a while–I wrote a post opposing the expulsion of the University of Oklahoma students and I wrote one in favor of letting Sterling keep his team).
That said, refusing to serve someone is not a speech act, it’s an economic act. I don’t think racists/homophobes should be prevented from owning businesses, but I do think they should be prevented from discriminating against subgroups. If Donald Sterling had actually refused to sell tickets to blacks or the U of OK frat had actually denied black students membership, I would have supported legal sanctions against those guys.
So I think there’s a sharp distinction we should draw between speech acts (which should be permitted no matter how repugnant the view expressed) and economic acts, in which someone is denied employment or service. People are entitled to hurt each other’s feelings, but not to discriminate in economic or commercial matters.
Absolutely true. But we seem to push this no hurt feelings policy all the time, which really DOES limit the debates and discourse we can have. And limiting discourse limits thought, which limits growth and progress. I find it incredibly dangerous that there are everyday topics which are taboo. I find it reassuring that you agree, but it’s pretty depressing to consider the battle one would have to fight to have reasonable discussions in this social climate.
Keep up the good work man, and maybe one day we’ll all be able to talk about these things without all the accompanying nonsense.
[…] legal person. So this law encourages speculative and frivolous defences to court action. Thanks to Benjamin Studebaker, who had done the work already. The law protects the religious acts of businesses as well as […]
I am from Indiana and have been hoping for your analysis of the RFRA. Thank you for this. I have been disheartened by the social media shouts to Boycott Indiana…what exactly does that mean? Stop listening to Michael Jackson and John Mellencamp, leave the universities if you are from out of state, refuse to eat sugar cream pie and pork tenderloins? I also have seen an extremely intense debate on social media, with the same articles shared over and over. It’s getting tiring.
This might be extrapolating, but one thing I’ve wondered about is the ability of business owners to say no to certain projects. If a business is swamped and has to turn down an order, will it be sued because the customer could see it as discrimination? If I as a freelancer disagree with the content of a project I am requested to do and I turn it down based on conscience, will I be taken to court? I am concerned about being able to follow conscience and beliefs (and I’m not necessarily talking religious beliefs here; e.g. I work in agriculture and there are many opinions about animal welfare, organic, energy use, etc.) even if they are different from the mainstream. It seems the businesses who are speaking against Indiana are practicing their right to follow their beliefs while trying to deny others that right. Is that a fair assessment?
Another aspect that seems to be getting drowned out is the history of the bill starting with Native Americans and throughout its history, allowing churches to feed the homeless, Muslims to grow a beard in prison, among other things. There was a case in New Mexico involving a photographer who refused to take on a wedding of a gay couple and was sued. The photographer lost. LGBT issues are certainly forefront now, but that does not seem to be the only thing that the law is about.
Only certain kinds of discrimination are illegal (typically on the basis of race, sex, ethnicity, religion, orientation, etc.). If you turn down a project or customer for impartial reasons that do not target someone’s identity, there’s no legal issue. For instance, if you run a burger joint and someone comes in and orders a taco and you decline to make the taco, you’re in the clear because you’re declining to make the taco because of the kind of project a taco is, not because of the identity or background of the person ordering the taco.
There is indeed a lot more to RFRA laws than just the discrimination issue–they are used to get exemptions to many different kinds of laws. I’ve got a follow up post in the works that will cover those issues in detail.
Thanks for the explanation. Then, I wonder if there is grounds for denying to help out in a gay wedding on the basis it is a project someone doesn’t believe in as opposed to discriminating against a person. Is declining to help with someone’s marriage, hetero or homo, targeting their identity? I recently read an article about a case in Northern Ireland where the bakery owners were very clear that they were turning down the project because they didn’t believe in participating in gay marriage, but would serve the couple if they came in to buy something from the store. Where do you draw the line?
This depends on whether or not we think businesses are entitled to make their product or service conditional on the way in which the customer uses the product or service once purchased. Is a business entitled to make its service to gays conditional on the gays not using the service to have a wedding? I would say no–companies should not have a say in the use to which customers put their products. If a company doesn’t want to make cakes in the first place, that’s fine, but if it’s going to make cakes, it should not get a say in how customers choose to use those cakes. If I want to buy a cake and throw it in the dumpster, I’m entitled to do that.
Excellent piece. I thought that one other difference between the Indiana law and other so-called religious freedom statutes was that it defines “person” to include corporations and businesses. The other laws only apply to religious freedom of individuals. This means that a business could discriminate by claiming that it is exercising its religious beliefs.
Indiana’s law does explicitly confer personhood on corporations. Many of the other RFRAs are vague on this point–we have seen other RFRAs used by corporations claiming personhood (e.g. the Hobby Lobby case), and courts have allowed them to be used in that way.
[…] my previous post, I wrote about Indiana’s recently passed Religious Freedom Restoration Act (RFRA) and how it […]
[…] against gay marriage and defended the controversial Indiana RFRA law (though, unlike most republicans, she would give LGBT couples many of the same legal […]
[…] a general complaint against the complains against the RFRA, claiming it’s not a big deal, but Benjamin Studebaker covers quite nicely why it is a big deal and his continued comparison to other states is […]
[…] discrimination on the basis of sexuality, and in combination with this the law effectively protected the right to discriminate on the basis of sexuality. Under that law, LGBTs might be denied employment, housing, or service […]