RFRA AgainJason Hines September/October 2015
When Indiana governor Mike Pence held a press conference in order to clarify the Indiana Religious Freedom Restoration Act , criticism became viral. There has been ever more discussion and criticism of the law since. These RFRA fights are the definition of a church-state/religious freedom issue, and I felt compelled to write about it. However, because of all the commentary (for example, an admitted subpar piece from Russell Moore and a 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 remember writing an article that addressed much of the problem with the type of ideology this state’s RFRA espouses when New Mexico dealt with this issue from a judicial perspective in 2013.
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 only to clear up a misconception, as opposed to a law with some serious and dangerous flaws.
Governor 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—Governor Pence did.
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 an RFRA defense against potential clients whom 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 Governor Pence to claim that there are no substantive differences between the Indiana statute and the other RFRA statutes that exist.
Governor Pence seemed to have fun saying 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, Governor Pence is correct—RFRA does not grant a license to discriminate. However, the law provided defense for the discrimination at issue—specifically discrimination based on sexual orientation.
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 Governor Pence never acknowledged that probability.
Finally, it has come to my attention that Governor Pence may have said something that wasn’t quite accurate. Governor Pence was asked whether he thought that there would be all this criticism of RFRA, and answered an emphatic no. It seems that was not accurate. At the end of February, 30 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 Governor Pence could have known, had he thought to look.
In the end, this seems to be much ado about nothing. Governor Pence fixed the law 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 increasingly competing ideologies begin to break in different directions.
Article Author: Jason Hines
Jason Hines is Associate Editor for ReligiousLiberty.TV an independent religious liberty website. A Harvard Law graduate, Jason practiced commercial litigation in Philadelphia for five years and conducted seminars on religious liberty in his spare time. This gave him the opportunity to discuss issues of religious freedom with Adventists in churches all over the United States. In 2008, Jason decided to devote his life to work in religious liberty. To that end, he enrolled at the Seminary at Andrews University, where he is pursuing a Master’s Degree in Religion. He is also a PhD candidate in the Religion, Politics, and Society at the J.M. Dawson Institute for Church-State Studies at Baylor University. Jason blogs about religious liberty and other religious issues at thehinesight.blogspot.com.