March 31, 2015 // Local

Religious Freedom legislation becomes Indiana Law

Todays Catholic

STATEHOUSE — Hoosiers of all faith traditions can be assured that government will not infringe upon their constitutional right to freely exercise their religion.

In the final week of March, Indiana joined 19 other states to provide a state version of the federal Religious Freedom Restoration Act (RFRA) with Governor Mike Pence putting his stamp of approval on it by signing it into law.

The legislation, Senate Bill 101 received a large majority of support from both chambers passing it by large margins in the Senate 40-10, and the House 63-31.

At the bill signing March 26, Governor Pence said, “This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

The governor added, “Indiana is rightly celebrated for the hospitality, generosity, tolerance and values of our people, and that will never change. Faith and religion are important values to millions of Hoosiers and with the passage of this legislation, we ensure that Indiana will continue to be a place where we respect freedom of religion and make certain that government action will always be subject to the highest level of scrutiny that respects the religious beliefs of every Hoosier of every faith.”

Glenn Tebbe, Indiana Catholic Conference executive director who officially represents the Catholic Church in Indiana on matters of public policy said, “This legislation will protect all faith traditions from government interference in the free exercise of religion. The legislation will help resolve disputes rather than create them.”

While many have raised concerns that RFRA is a vehicle for legal discrimination of homosexuals or others, Indiana University Maurer School of Law professor Daniel Conkle has repeatedly debunked those claims citing current legal cases to back up his position. He testified in both in the House and Senate hearings and reiterated his position in a recent editorial to the Indianapolis Star.

Conkle, a constitutional law expert and advocate of gay rights and same-sex marriage said the RFRA legislation has “little to do with same-sex marriage and everything to do with religious freedom.”

Conkle added that “most religious freedom claims have nothing to do with same-sex marriage or discrimination.” Conkle said the law is “anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.” According to Conkle, even in the narrow setting of wedding-service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted the RFRA test.

In addition to explaining what RFRA wouldn’t do, Conkle explained to both the House and Senate members that a state RFRA would establish a general legal standard, the “compelling interest” test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion.

Richard Garnett, a law professor at the University of Notre Dame in northern Indiana, in an opinion column in the March 26 issue of the South Bend Tribune, described the state’s RFRA as a “moderate measure” modeled after the federal religious freedom law and those of several other states that “does not give anyone a ‘license to discriminate.’”

He noted that the more than 20 years of history of the applying of RFRA statutes to specific cases shows that courts across the country “have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections.”

Instead, Garnett pointed out, religious freedom laws have helped people of a broad variety of faiths.

“In practice, over the last two decades or so, religious freedom restoration acts have been used not to excuse illegal discrimination or harmful behavior but instead to secure humane accommodations,” Garnett said, “such as allowing members of a small Brazilian church to possess plants that are necessary to make sacramental tea, or preventing the government from firing a Rastafarian with a traditional haircut, or respecting a family’s religious objections to an autopsy of their loved one.”

Several members of the House spoke out against the bill during the House floor debate.

Rep. Ed Delaney, D-Indianapolis, called the bill “futile and destructive” adding that he felt the bill would allow discrimination. House Minority Leader Rep. Scott Pelath, D-Michigan City, also raised concerns that he also believed the bill would permit discrimination. Two African American lawmakers Rep. Vernon Smith, D-Gary and Rep. Cherrish Pryor D-Indianapolis said even though they were devout Christians they were opposed to the bill given their belief that the bill could potentially cause discrimination.

Rep. Tom Washburn, R-Evansville, explained that the Religious Restoration Act assists the courts in determining what happens when a fundamental right and a government interest come in to conflict. When a conflict arises between a fundamental right, and the government, the government must have “a really good reason” or what’s called a compelling government interest.

Washburn said that not only does the government have to have a really good reason, but it has to be focused on the reason they are trying to address. Washburn said that the basic analysis of fundamental rights as it relates to a government compelling interest has been applied for many decades, and in this legislation this standard will be applied to cases involving the free exercise of religion.

The federal Religious Freedom Restoration Act (RFRA) was passed by Congress, and signed into law by President Bill Clinton in 1993. The federal legislation was authored by a Democrat, the Honorable Chuck Schumer, a U.S. Senator from New York, but the federal legislation does not apply to states. As a result, beginning also in 1993, states began adopting state RFRA laws. Currently, 19 states have passed RFRA legislation, and 11 states’ constitutions have been interpreted to restore the compelling interest test when cases of the exercise of religion are substantially burdened.

Indiana’s religious freedom legislation is mirrored after the federal RFRA. The legislation goes into effect July 1, 2015.

Religious Freedom Facts

The goal of the legislation is to restore the compelling interest test and guarantee its application in all cases where free exercise of religion is substantially burdened and to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

Senate Bill 101 establishes the compelling interest test. The religious practitioner must prove that their practice of religion has been substantially burdened. If they prove this, the state may come back and prove that it is a compelling state interest for them to do so. If the state does prove that, the state must do so in the least restrictive means. The legislation sets a foundation and framework for what government must do and what tests they must pass before it restricts religious freedom.
— Sen. Scott Schneider, R-Indianapolis, author of Senate Bill 101 — Religious Freedom Bill