On Friday, the Washington Post published an article titled “19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting.” The article snarks about organizations like the NCAA that have protested Indiana’s law, noting “the NCAA didn’t say it was concerned over how athletes and employees would be affected by Kentucky’s RFRA when games were played there last week.” The piece concludes “Indiana might be treated as if it’s the only state with a bill like this, but it’s not.” The piece has been shared over 75,000 times on Facebook.
The Washington Post article largely mirrors the argument advanced by Indiana Governor Mike Pence. Appearing on ABC’s This Week, Pence claimed “Then state-Sen. Barack Obama voted for [the Religious Freedom Restoration Act]. The very same language.”
It’s not true.
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”
Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens.* This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”
This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.
Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… 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.”
Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction — and then goes even further.
This is compounded by Section 5 of the Indiana law which, mirroring the federal law, provides protections to religious practices “whether or not compelled by, or central to, a system of religious belief.” So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.
Beyond the differences between the Indiana law and other states, many of the other states that have a RFRA also have a law that prohibits discrimination based on sexual orientation. Indiana does not have one.
This is not to say the federal RFRA — and the state laws that are actually modeled after it — don’t have problems. Indeed, “Nineteen members of Congress who voted for the passage of the law in 1993 have now withdrawn their support for the federal RFRA given that it has been interpreted by the courts in ways that were not intended by the Congress at the time of the law’s passage.” Much of this rethinking was prompted by the Hobby Lobby case, where the Supreme Court expanded its interpretation of the federal RFRA to certain corporations.
Claiming that the Indiana law is just like the laws in 19 other states, however, is simply not true. Other states are following Indiana’s lead and broadening the language of the law.
Why the change? Beyond the substance, the politics of the RFRA has become much different. When the federal law was signed in 1993, it was thought “to be about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks.” Today, Indiana’s law is driven “by the politics of anti-gay backlash. Their most ardent supporters come from an increasingly angry, marginalized, and shrill subset of Christian conservative activists.”
* Texas’ RFRA, enacted in 1999, contains similar — but not identical — language. The Texas law, however, also specificly exempts civil rights protections from the scope of the law.