April 27, 2015, New York—The Indiana Religious Freedom Restoration Act (RFRA), signed by Governor Mike Spence last month, has set off a wave of concern that LGBT citizens will be discriminated against at certain businesses. For those who haven’t been updated on the ins and outs of the RFRA, here’s the lowdown: it’s a bill which provides that a state or local government action may not substantially burden a person’s right to the exercise of religion unless that burden is essential to carry through a compelling governmental interest. This essentially means that a person can claim a burden has been placed on their exercise of religion by a broad state law; practically speaking, a person has a right to argue that a certain state or local legislation is infringing upon his rights to exercise religion freely. This doesn’t sound all too revolutionary. This is America—we have seen this protocol established before.
In 1990, a Native American employee working for the state employment agency in Oregon failed a drug test and as a result, was fired from his job. When he was subsequently denied unemployment benefits as a result of the nature of his dismissal, he challenged the decision, based on his First Amendment religious freedoms.
According to the unemployed Native American, he had ingested a hallucinogenic drug, peyote, as part of a sacred religious ritual practiced by his tribe. It was the presence of that drug in his system that had caused him to fail the drug test and lose his job; which is why, he argued, he should not have been fired for engaging in a ritual of his religion as doing so violated his constitutionally protected religious rights.
The United States Supreme Court did not see it that way, holding that the constitutional guarantee that one may freely exercise one’s religion could not be raised as a defense to a law of ‘general applicability’. In other words, if everyone working for the State of Oregon would be fired for failing a drug test, the offended employee could not raise his religious practices as an excuse for why he should be treated differently.
The case caused a bit of an uproar among people who believed that the Constitution protects people who are legitimately practicing their religious beliefs and cannot, under our Constitution, be fired for doing something that was a religious practice.
As a result, in 1993, we got the federal version of the Religious Freedom Restoration Act, which established the ability to exercise one’s religious practices freely when a broad law conflicts with it, as long as that practice does not clash with “compelling state interest.”
So, in short, if we already have this idea established at the federal level, why is Indiana’s version so newsworthy?
The difference is in the details: there is a question of whether or not the federal RFRA was intended to allow Americans to raise the defense of free exercise in a legal fight against the state, or in a legal fight against a private entity as well. Indiana’s RFRA explicitly gives the right to raise this defense against private entities.
People who are arguing against the bill also say that Indiana’s RFRA is much broader than the federal government’s RFRA—saying it would grant religious liberty to any corporation, group of people, or business, regardless of whether or not the members share a single religion. The federal law grants these rights to individual people, nonprofit organizations, or in the famous Hobby Lobby case, to closely knit corporations where owners all share the same religious beliefs.
Governor Pence and other Indiana state leaders have been attacked with a multitude of criticisms from human rights activists and other people who fear this law will allow discrimination based on sexual orientation. In other words, businesses who refuse to serve customers based on sexual orientation can claim religious freedom.
As a religious Jew in a religious institution, I’m conflicted. Obviously, any mandate giving religious freedom to people in America is something I should be ecstatic about. However, it is quite ironic that an act intended to give freedom to one citizen can potentially lead to discrimination toward another.
The Mayor of Indianapolis, Greg Ballard, has asked Pence and the Indiana General Assembly to either repeal RFRA or add explicit protections for sexual orientation and gender identity in state law, which exist in some other RFRA states. For example, Texas specifically states that the religious freedom law cannot be used as a defense against a civil rights ordinance.
Governor Pence is still working out the details of Indiana’s RFRA in order to address these concerns and make it clear that it is not RFRA’s intention to allow businesses to deny services to anyone.