Why I oppose Indiana’s RFRA- Part 1: The legal reasoning

So there has been a lot of talk about Indiana’s new Religious Freedom Bill, but I’ve heard remarkably little about what the bill actually contains and how it compares to existing legislation.  First off, go read the full text of the bill, available here.

Seriously- go read it.  If you have formed an opinion about this bill, (haven’t we all?) you have no excuse not to.  It’s shorter than this blog likely will be, and not too full of ‘jargon.’  I’m not a lawyer, but I have seen far too much misinformation circulating about this bill and it has taken quite a bit of work to figure out why exactly this iteration of this type of legislation has stirred up so much controversy.  I share that research with you so that our collective dialog can be as well-informed as it has been passionate.

justice_crop

First, we will start with a little history.  The federal (and original) bill of this type is the Religious Freedom Restoration Act.  (1, 2, 3, 4, 5)  This bill was introduced on March 11, 1993 and passed by a unanimous U.S. House and a near unanimous U.S. Senate with three dissenting votes and was signed into law by President Bill Clinton.  Since then 21 states, including Indiana, have passed their own versions of RFRA- though most closely mimic the federal law.  For example, Illinois’ RFRA law, passed in 1998, follows this trend.

The beginning of the more recent brand of these laws, as seen most recently in Indiana (and in Georgia in the near future,) started in Arizona last year.  Arizona already had a RFRA clone, passed in 1999, but following sexual orientation becoming a protected class in AZ (something that has not been done federally or at a state level in Indiana, though some IN cities do have anti-discrimination laws) they introduced SB 1062 in 2013, which revised their existing RFRA.  (Changes clearly visible here.)  Due to the outcry, Arizona governor Jan Brewer vetoed SB 1062.

The two major changes can be seen here:

AZ_RFRA_Sec5 AZ_RFRA_Sec9D

As you can see, these two changes make a huge difference.  Note that while applying personal rights to corporations (which is unfortunately nothing new) they don’t even specify “closely-held corporations,” as the Hobby Lobby SCOTUS ruling did last year.

Similar language can be found in Section 7 and Section 9, respectively, of Indiana’s new bill.  However, Indiana’s bill goes even further than Arizona’s failed bill did.

In section 5, the bill states: As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to,a system of religious belief.

That is incredibly broad and unnecessarily vague.  I’ll spare you the hyperbolic illustrations, but it isn’t hard to imagine abuses of such a clause.

In addition to that, Indiana’s version of the bill also includes this language, also in Section 9: A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter…

This is another change from existing RFRA bills, and perhaps the most significant of the changes.  This allows for the option of preemptive litigation against somebody who is likely to infringe on the religious freedom of another entity, not just somebody who has done so.  Yikes.

The primary defense I’ve heard of this law is that it is “just like the federal RFRA and numerous other states,” including my own.  I hope after reading this, you will realize that this is very much not the case.  These four additions drastically change both the power granted by this law and the message that it sends.

To sum up- what this bill truly accomplishes is this:

It is now legal for one person (or corporation, LLC, society, firm, or unincorporated association) to sue another entity (government or not) for a likely burden placed on a non-central component of their faith.

I know this was fairly dry, but I wanted to stay as objective as I could and stick to the legal/societal realities and consequences of Indiana’s RFRA.  I will follow this post with Part 2, detailing my opposition to the law from a personal/theological perspective.

Edit: Part 2 is now available.

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