The Fallout Continues

The newest excuse for Indiana’s Religious Freedom Restoration Act is that other states and even the federal government have the same law, so why is everyone picking on Indiana? Garrett Epps explains,

…even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.

The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes.  If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: “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.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.

And it seems to me that a lot of people are awfully frantic to defend the Indiana law if it doesn’t actually do anything or allow anything that isn’t already allowed.

See also Indiana’s Mike Pence is starting to look like Lester Maddox — without the spine.

5 thoughts on “The Fallout Continues

  1. I’ve seen scandals and such that were limited in scope to the far-right and far-left activists willing to make an issue of whatever the debate was. This one is different. CNN is headlining the story and major companies (like Apple) are swinging hard. My guess is that Indiana won’t back down and zealots on both sides will eagerly charge forward with a test case which almost certainly will be appealed through several levels, possibly to the USSC. IMO, this one won’t go away overnight and the GOP may soon wish it would. Presidential candidates won’t be able to distance themselves from the issue and for the GOP to be writing laws to enable discrimination on the basis of sexual orientation (or damn near anything) won’t play well with the public.

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  3. The Modern Conservative version of the song on “Barney:”
    ‘I H8 you.
    You H8 me,
    We’re a dysfunctional fam-i-!y’

    You signed this travesty into law, Mike “The Dense” Pence!
    You can run.
    But you can’t hide!!!*

    If you do try to hide, don’t try to hide in the closet.
    There are millions of poor self-hating people already in there…………

  4. On another blog I responded to a Spence quote where he claimed he couldn’t see what all the fuss was because this law did nothing that hadn’t been in force for years. Which leads to the question why have this new law if that were true.

    Of course he was lying.

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