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. â€œIndiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,â€ the Postâ€™s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.
The problem with this statement is that, well, itâ€™s false. That becomes clear when you read and compare those tedious state statutes.Â If you do that, you will find that the Indiana statute has two features the federal RFRAâ€”and most state RFRAsâ€”do not. First, the Indiana law explicitly allows any for-profit business to assert a right to â€œthe free exercise of religion.â€ The federal RFRA doesnâ€™t contain such language, and neither does any of the state RFRAs except South Carolinaâ€™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: â€œA 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.â€ (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 â€œfree exerciseâ€ rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last yearâ€™s decision in Burwell v. Hobby Lobby Stores, in which the Courtâ€™s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employeesâ€™ statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a businessâ€™s â€œfree exerciseâ€ right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, thereâ€™s a lot of evidence that the new wave of â€œreligious freedomâ€ 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 coupleâ€™s wedding. New Mexico law bars discrimination in â€œpublic accommodationsâ€ on the basis of sexual orientation. The studio said that New Mexicoâ€™s RFRA nonetheless barred the suit; but the stateâ€™s Supreme Court held that the RFRA did not apply â€œbecause the government is not a party.â€
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.Â 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.