Thursday, March 26, 2015
This week, the General Assembly passed a bill known as the Indiana Religious Freedom Restoration Act that protects Hoosiers’ religious liberty. This bill has been grossly mischaracterized by its opponents as a “license to discriminate,” obscuring the bill’s true intent.
The RFRA does one thing: It establishes a legal test for judges to use when deciding whether or not a government act goes too far in burdening someone’s exercise of religion. Specifically, the RFRA test says that government can’t “substantially burden” religious freedom unless the action furthers “a compelling governmental interest” using “the least restrictive means” possible. The shorthand name for this legal test is “strict scrutiny.”
Some supporters of LGBT rights fear that the legal test established by the RFRA will allow discrimination based on sexual orientation. These fears are unfounded. Many legal scholars, including some who support same-sex marriage, have voiced their support for this legislation in Indiana.
The strict scrutiny test in Indiana’s RFRA is copied from the federal RFRA passed by Congress in 1993 and the RFRA laws of 19 other states. In addition to the 19 states with RFRA laws, at least 11 additional states apply strict scrutiny to laws that burden religious freedom through their constitutions. In the decades that federal and state courts have been interpreting RFRA laws, opponents cannot point to a single case in which a court has ruled that the RFRA allows discrimination based on sexual orientation.
In fact, the genesis of RFRA laws has nothing to do with discrimination or same-sex marriage at all. For decades before Congress passed the federal RFRA, the U.S. Supreme Court applied strict scrutiny to laws burdening religious freedom. But in the 1990 case Employment Division v. Smith, the Supreme Court reversed its prior rulings and gave less protection to religious freedom in the United States. National leaders of all political stripes responded by passing the federal RFRA to restore the strict scrutiny test, because they recognized that religious liberty is a fundamental right that deserves strong legal protection.
The federal RFRA that’s still in effect today passed the U.S. House unanimously, passed the U.S. Senate 97-3, and was enthusiastically signed into law by President Clinton. The ACLU praised the law’s passage. Among the bill’s dozens of Congressional co-sponsors were Nancy Pelosi, Ted Kennedy, John Kerry and Chuck Schumer.
The bipartisan respect for religious freedom has also carried over to the votes for most state-level RFRA’s. For example, when President Obama was an Illinois State Senator in 1998, he voted for Illinois’ RFRA.
The impetus for Indiana to pass its own RFRA is a growing fear among Hoosiers that government doesn’t adequately respect religious freedom. While Hoosiers respect the religious rights of our neighbors and loved ones, it’s unclear if Indiana’s courts would apply the same level of protection for religious freedom that citizens in most of the country already enjoy. Indiana’s RFRA clarifies this issue for Indiana courts by bringing our state in line with federal courts and most states.
It bears repeating that there is no history of RFRA laws leading to discrimination based on sexual orientation, and there’s no reason to think Indiana’s RFRA will be any different. This law doesn’t threaten anyone. It is a common sense measure to make sure Hoosiers’ constitutional rights receive the fullest protection possible.