I was restless the night before Gov. Pence signed Indiana’s Religious Freedom Restoration Act (RFRA) into law. The cries of those who opposed the act and the responses of those who either supported it or felt it wasn’t as bad as people thought filled my social media feeds for days. At some point the old political scientist I was trained to be in college kicked in. I wondered how and where this legislation originated, what had been done before, and what it all meant. So I started researching.
In his press conference following the bill signing on Thursday, March 26, Gov. Pence advised that those opposing the bill would feel better about it if they just took the time to read it and realize it wasn’t a departure from federal and other state statutes. Before Gov. Pence ever made that suggestion, I did just that. In fact, I also read 18 other existing state RFRA statutes, the existing federal RFRA, the eerily similar statute that made it all the way to the Arizona governor’s desks before dying by veto, most of the court cases that involved the federal RFRA, and a handful of essays by legal scholars offering their opinions on the bill. It all led me to one conclusion: Indiana’s version of the RFRA is bad legislation.
It helps to start with some background on the RFRA itself. The original federal Religious Freedom Restoration Act passed in 1993 under Clinton with heavy bipartisan support from both houses of Congress. It was primarily a reaction to court decisions that limited Native American practice of religion. Loosely put, the act protected that population from federal meddling on sacred lands or in sacred ceremonies by stating the government could not ‘burden’ a person’s free exercise of religion. The whole thing reads like a giant footnote to the First Amendment saying “this is what we mean by that whole ‘freedom of religion’ thing.”
The RFRA got its first big Supreme Court test in 1997 where the Court limited its reach to only federal burdens on religious practice, leaving the states to deal with their own issues. In turn, many states passed their own RFRAs with language identical to the federal version.
There were a few noteworthy tests of the RFRA along the way, with big ones dealing with Native American use of peyote in ceremony (courts said they could), religious objection to taxes (courts said get over it), and religious objection to Social Security numbers as a ‘mark of the beast’ (courts said WTF?). Then the big one came down in 2014 with Burwell vs Hobby Lobby.
The fed RFRA specified that a “person” held religious freedom. With some support from previous decisions, Hobby Lobby challenged that their business was an extension of their personhood and, thus, subject to the same religious protections, primarily from requirements of the Affordable Care Act. After a highly publicized case, the court agreed with Hobby Lobby in a limited decision noting it only applied to defined ‘closely held’ entities (where a small group controls ownership). The RFRA effectively extended from personal to business practice in certain situations.
And that leads us to where we currently are. Many states beyond those who adopted some version of the federal RFRA have kicked the tires on an expanded RFRA. Most have stalled it or ran away, most notably Georgia, where an RFRA bill died in committee the same week Indiana’s bill was signed into law. Indiana has chosen to be an exception, enacting legislation that Arizona walked away from about a year ago after hearing the same potential repercussions that our state is now facing. It’s legislation that is definitely crafted to react to the post-Hobby Lobby decision world.
After reading, researching, and hearing initial reactions to Indiana’s RFRA, I strongly believe it to be bad, damaging legislation for a number of specific reasons:
1. It goes beyond the federal law. I start out with a point that may be rendered moot by Burwell v Hobby Lobby, but I think it’s the part of the legislation that has the potential to cause the most trouble. The language of the Indiana bill extends the definition of “person” to business ownership. This point is where the Indiana bill departs from most existing state legislation. This point is also where most of the criticism focuses. To use the most common example offered by the opposition, the bill could very well grant business owners the opportunity to turn away patrons based on their sexual orientation or gender identity. For those of us educated in the post-Civil Rights era who hold an appreciation for the notion that business cannot operate with prejudice, this language feels like a step backwards.
The Indiana bill also gives defendants in private suits the opportunity to use the RFRA as a defense. In short, it doesn’t just relieve individuals and businesses from governmental burdens on religious practices, but also individual burdens. It’s an extra defense for those claiming religious rights against those claiming their personal rights have been violated by such practice.
The most common counter argument to this point is that the courts will not expand the language to justify discrimination and existing cases have made this point clear. The language in the Indiana bill is unique, though, and hasn’t been tested in courts yet. You can count on a test coming at some point, though.
2. The timing feels vindictive. The federal RFRA has been on the books for 22 years. States have been passing RFRAs following Supreme Court action on the original since 1997. Indiana chose to take up the cause during the first legislative session after failing to pass the marriage amendment and having that issue decided, at least temporarily, by Supreme Court action (or inaction in this case). This legislation feels like a bone thrown to those opposed to marriage equity and focused solely on the LGBT community.
The governor and supporters have been quick to point out that the RFRA and marriage equality battle are not linked and the RFRA is primarily an effort to protect religious freedom from government intervention. I can’t claim to have researched every case involving religious freedom in this state in recent years, but I can say I can’t recall a major religious freedoms case in this state that doesn’t involve LGBT rights as well.
That brings us to….
3. It’s unnecessary legislation. Some have called Indiana’s RFRA “a solution looking for a problem.” I think that’s a fair assessment. The main reason is that if it’s focused primarily on LGBT communities (I acknowledge that those in favor of the bill will argue otherwise, to which I refer them to point #2), it’s unnecessary simply because sexual orientation and gender identity are not protected classes under Indiana’s civil rights laws.
RFRA supporters argue that under current law they don’t have the right to refuse service based on belief (the Jewish sign maker being forced to serve Nazis, as an example). Here’s the deal: They absolutely have the right to refuse service, but not for just any reason. Indiana’s civil rights law assures “access to public conveniences and accommodations” (i.e. businesses) to all free of discrimination due to race, religion, color, sex, disability, national origin, or ancestry. Presumably those protections will live on in a post-RFRA era. Sexual orientation and gender identity are missing from that list, though. So is political identity, for that matter.
Think back to the two noteworthy cases in Indiana thus far – the City Market cookie maker and the near Northside baker. Both suffered some bad PR due to refusing service to members of the LGBT community based on religious belief, but both stayed in business without action from the government. They were protected from action because they weren’t discriminating against a protected class.
For what it’s worth, I don’t think this lack of protection is a good thing, but it is how things currently operate.
4. Perception = reality. Let’s say everything those who support the RFRA claim is valid. We will live on in a post-RFRA world where religious freedoms are further codified. No one will face undue discrimination. We will all live on happily, blissfully unaware that the RFRA is even in place. The problem we face nonetheless is that so many people—and, arguably more important, businesses and investors—have labeled the RFRA as discriminatory legislation and the repercussions of that perception are now our reality.
Indiana has already suffered a black eye due to the RFRA. Conventions are threatening to pull out. Big businesses are threatening to retract investment. In short, passing what is already perceived as a discriminatory bill could have real financial impact on the state and citizens. National and global media have jumped on the wagon as well, This state now has the label of “discriminatory” based on the RFRA. For the near term, and maybe the long, that will be how people perceive of our state and will treat us accordingly.
Unfortunately, we’ll feel the effects of this perception most here in the big city. Those from the smaller communities beyond Indianapolis likely won’t see the job loss from divestment by businesses not based in Indiana or see local businesses closing due to a lack of income source that I fear our city will face. Or they won’t see it until they visit downtown Indianapolis and wonder why all the stores in Circle Centre are closed or why all the restaurants are gone.
Indianapolis has been on the upswing lately. The city has earned a reputation as a vibrant community with an expanding base of companies in economic growth sectors. That reputation and growth is now in jeopardy simply due to the passage of Indiana’s version of the RFRA.
5. Political risk. If you haven’t figured it out by this point, my personal politics lean left. Whenever I take those political quizzes online I tend to land somewhere between “liberal” and “commie” (though for full disclosure I have voted for people on the other side of the political spectrum in local and state elections when I felt the right person for the job was on that side of the spectrum). In short, I’m in no place to advise the politicians who pushed this legislation through. I typically don’t vote for those folks and I enjoy seeing them do things that risk their political futures. But if I were a legislator, I’d be leery about supporting this thing.
Passage of this bill has certainly awakened and politically energized a segment of the population now focused on getting those who support it out of office. Gov. Pence has effectively hitched his wagon to the religious right. If you look at the past fortunes of national candidates who primarily played to the religious right base, he’s hurt his chances of achieving political office beyond this state.
I have to give Mitch Daniels (a guy I actually voted for once) some credit. He publicly steered clear of risky social legislation and didn’t make it a major part of his legislative agenda, even when the legislature pushed for it. Even today he refuses to comment on the RFRA. Our current governor, on the other hand, has embraced that agenda and now made the RFRA the signature legislation of his term in office.
6. Someone will feel the effects of this bill, and it might be my friends. I save my last point for the most personal. It’s kind of the “Revelations” of my note where I look deeply into the future. The RFRA effectively makes my friends, especially those in the LGBT community, a target for legal discrimination. No matter what courts ultimately decide or how politicians spin it, someone will test the scope of the RFRA with discriminatory action and someone will feel the effects of that action. That makes me mad. That probably makes people who will potentially be targeted by the RFRA even more mad. People acting out of anger don’t make wise choices, and that worries me.
In one of my favorite poems, Langston Hughes questioned what happens to a “dream deferred.” He closes by asking, “does it explode?” As much as I’d like to think we Hoosiers are level-headed enough to not resort to extreme action to make a political point, I also don’t know the feeling of being the target of a discriminatory eye and what that can lead to. We witnessed what a community that has felt the long-term effects of discrimination is capable of in Ferguson. I hope we don’t get to a point here where argument becomes action.
What do I think will happen next? Someone will test the RFRA in a business setting. Cases will begin making their way through the courts. Business owners who apply the RFRA as a business practice will be outed and shamed by those opposing the bill and receive overwhelming support from those supporting the bill. The culture war will increase and drag on. Individuals will be politically motivated. Indiana will take some revenue hits as divestments occur. Things will change, for bad and, hopefully, good.
I’m actually quite encouraged by the good that’s already occurred. Individuals are rushing to voice their opposition. Businesses are making it clear that they have no use for the RFRA. The issue of equality is front and center and forcing people to think about what they can do to make this state a better place to live and visit. These steps are all good starting points toward erasing the RFRA from the books in Indiana.
Before I started my political science exercise, I was reminded of the words of favorite Hoosier son Kurt Vonnegut. No matter where you stand on the issue, I think that if we can all agree to this, we’ll be ok:
“Hello babies. Welcome to Earth. It’s hot in the summer and cold in the winter. It’s round and wet and crowded. On the outside, babies, you’ve got a hundred years here. There’s only one rule that I know of, babies—”God damn it, you’ve got to be kind.”
Be kind, people.