Indiana RFRA: Fact vs. fiction

Thousands of opponents of Indiana Senate Bill 101, the Religious Freedom Restoration Act, gathered on the lawn of the Indiana State House to rally against that legislation Saturday, March 28, 2015.


INDIANAPOLIS (MEDIA GENERAL) — “The reputation of the law and the intentions of the legislation have been called into question. And we need to deal with this, this week. We will fix this and move forward,” Indiana Gov. Mike Pence said Tuesday morning.

At the same time, the fallout from Indiana’s Religious Freedom Restoration Act (RFRA) continues. Tuesday afternoon, New York Gov. Andrew Cuomo announced he was canceling all non-essential state travel to Indiana as a result of the law. Bands have cancelled concerts and businesses have expressed reservations about operating in the Hoosier state.

Indiana’s RFRA creates a defense for people accused of discrimination. It provides a test for the court to decide a discrimination case. It’s not yet clear what’s going to happen next and a judge will be the ultimate decision maker. But many questions remain.

In order to clarify the law, the Indiana House Republicans have published a FAQ page about the RFRA. Media General went to Western Michigan University – Cooley Law Professor Curt Benson, who has been teaching law for more than 14 years, to help decode what is fact and what is fiction. He has read the RFRA and is familiar with the federal statute and similar state laws around the country.

Indiana House Republicans: The only thing the RFRA does is establish a judicial review standard state courts must follow when they consider cases where government action is alleged to substantially burden an individual’s exercise of religion.

This is true. The act creates a legal defense for someone accused of discrimination. It allows them to argue in a court of law that they are acting in a legal manner because of their religious beliefs.

Indiana House Republicans: The RFRA protects the rights of everyone, regardless of their religious affiliation or lack thereof.

“Accurate, but largely irrelevant,” Benson said.

This is only going to come into play when someone is arguing that they have a specific religious belief in a discrimination dispute.

Indiana House Republicans: The adoption of the RFRA standard will assure that our state courts follow the same reasoning and case law as the federal courts and 30 other states when they weigh these issues.

“This is not true,” said Benson.

That’s because the federal statute is worded differently and so are most of the other state statutes.

“In law, the devil is in the details,” Benson said.

Here’s how Indiana’s law is different:

First, the Indiana law specifically says that for-profit corporations can invoke this law. A for-profit corporation can claim its religious beliefs are being burdened. Only Texas has that language, according to Benson. The federal statute and most other states do not. However, the U.S. Supreme Court did decide that for-profit companies can invoke the law as a defense in the Hobby Lobby case.

The Hobby Lobby case has gained lots of attention as a result of the Indiana law. In it, the U.S. Supreme Court ruled that Hobby Lobby did not have to provide insurance that included contraception to its employees because contraception went against the company’s religious beliefs. This was a federal case because it was being argued in relationship to the requirements around the federal Affordable Care Act. Hobby Lobby’s argument was under the federal Religious Freedom Restoration Act. Hobby Lobby won and that ruling created a firestorm.

“After this ruling, people realized this decision could also be used by groups opposed to same-sex marriage,” Benson explained.

Second, the Indiana law allows a corporation or person to invoke this statute in a lawsuit by a private party. In the federal statue, it’s only when the federal government is involved that it’s applicable.

Indiana House Republicans: The U.S. Supreme Court has ruled that the federal RFRA does not apply to state and local laws and Indiana’s case law is not clear on these issues.

True.

Indiana House Republicans: Hoosiers will likely not notice any difference whatsoever, unless the government is overstepping its bounds to restrict an individual from practicing their religious beliefs.

This doesn’t really matter, according to Benson. The statement “doesn’t really inform, it just promotes the law,” he said.

Indiana House Republicans: Nineteen states have enacted a RFRA law: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia.

This is true. Although, as previously mentioned, they are not all the same.

According to Benson, there are a few other things that have fueled the fire around Indiana’s law. Other states that passed a similar law also passed protections for same-sex couples at the same time. Indiana did not.

Also, this bill comes right before the U.S. Supreme Court is scheduled to hear the case surrounding gay marriage in April. The debate surrounding the RFRA and the timing have raised the concerns of LGBT groups and others, according to Benson.

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