By Jason Hines –
This week, Governor Mike Pence held a press conference in order to clarify the Indiana Religious Freedom Restoration Act that has received so much criticism lately. (You can take a look at a brief clip here.) There has been much discussion and criticism of the law over the past few days. These RFRA fights are the definition of a church-state/religious freedom issue, and I almost felt forced to write about it. However, because of all the commentary (for example, this admitted subpar piece from Russell Moore and this more balanced piece from Howard Friedman), I was feeling all RFRA’ed out. The principles behind these issues don’t change. You end up saying the same things you always say, just changing the facts to fit the situation. I already addressed much of the principled problems with the type of ideology this state’s RFRA espouses when New Mexico dealt with this issue from a judicial perspective in 2013. (Please go read the posts Almost.” and Unworkable Solutions.” I won’t be talking about much of what I said there here.) Governor Pence held his press conference and obfuscated his clarification by seeking to defend the law while admitting that it needed to be
clarified. Through sleight of hand, semantics, and a lack of knowledge, Governor Pence managed to give the impression that Indiana is now seeking to only clear up a misconception, as opposed to a law with some serious and dangerous flaws.
Gov. Pence repeatedly stated that this law was structurally similar to the federal RFRA and the other state RFRAs. When asked certain questions, he would meld the two together saying something to the effect of, The principle of this law when President Clinton signed it” Except that President Clinton didn’t sign the Indiana RFRA – Gov. Pence did.
Unfortunately for Gov. Pence there are two major differences between Indiana’s RFRA and the federal one. (This article from the Atlantic is the best summary I have seen.)
The first difference is that the law applies to for-profit corporations. Most state versions of this and the federal version do not protect for-profit businesses. In fact some states specifically prohibit for-profit businesses from claiming RFRA protections. RFRA was originally intended for the protection of religious minorities, individuals without much power or influence. By opening this protection up to corporations, it now potentially gives entities of great power and influence the ability to use this law.
Second, the Indiana law also allows for the defense to be raised even when the government is not a party to the case. This would allow business owners to raise a RFRA defense against potential clients who they want to discriminate against because of their religious beliefs. These are things you cannot do under normal RFRA statutes, and it is disingenuous for Gov. Pence to claim that there are no substantive differences between the Indiana statute and the other RFRA statutes that exist.
Gov. Pence seemed to have fun saying this morning that the Indiana RFRA does not grant a license to discriminate” against anyone. To be fair, much of the noise around the passage of the legislation described the Indiana RFRA this way. But the issue is an issue of semantics. Technically, Gov. Pence is correct ” RFRA does not grant a license to discriminate. However, the law does provide a defense for the discrimination at issue ” specifically discrimination based on sexual orientation. If the law stayed as it was written (which Gov. Pence now says it will not) then businesses would have discriminated against same-sex couples and then raised the RFRA defense when they got sued. Scholars are right to point out that discrimination of this type has never been allowed by a RFRA defense. The fact that Indiana has no anti-discrimination statute that covers sexual orientation coupled with the fact that we now live in a post Hobby Lobby and potentially more conservative judicial landscape does not bode well for that streak continuing. This is why the act has garnered so much criticism. It is within the realm of probability that this new RFRA could become a defense for discrimination, and Gov. Pence never acknowledged that probability.
Finally, it has come to my attention that Gov. Pence may have said something that wasn’t quite accurate. Gov. Pence was asked whether he thought that there would be all this criticism of RFRA. He said Heavens no!” It seems that was not accurate. At the end of February thirty law professors sent a letter to Representative Ed Delaney of the Indiana House of Representatives. They warned that this expansion of RFRA would 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.” While the letter was not sent directly to the Governor, there were those involved in the process that saw this backlash coming, and Gov. Pence could have known, had he thought to look.
In the end, this seems to be much ado about nothing. At least I hope so. Gov. Pence says he wants the law updated to reflect the idea that it may not be used to discriminate. Unfortunately this does not solve what seems to be an intractable problem ” how to keep a community together as the ideologies begin to break apart from each other.
Jason Hines recently completed his PhD in Church-State Studies at Baylor University. He received a B.A. in Political science from the University of Connecticut and a J.D. from Harvard Law School. After a five year career as a commercial litigator in Philadelphia, Jason decided to study questions of religious liberty and constitutional law in the American context.
Jason is also involved in several blogs devoted to religious and church-state questions. He is a columnist for the blog for Spectrum Magazine and is an associate editor for ReligiousLiberty.TV. He also maintains his own blog, HineSight, where he talks about religion, church-state issues, politics, and the occasional post pertaining to his beloved Philadelphia Eagles.