The Atlantic dissects Indiana’s controversial “Religious Freedom Restoration Act” (RFRA) that critics say is a “license to discriminate” against LGBT people, but that supporters, and Gov. Mike Pence, say is no different that a federal law, and laws in 19 other states.
Over the weekend, The Washington Post reported that “19 states that have ‘religious freedom’ laws like Indiana’s that no one is boycotting,” making observers wonder why there has been such intense backlash against Indiana.
The Washington Post seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.
The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes. If you do that, you will find that the Indiana statute has two features the federal RFRA — and most state RFRAs — do not.
First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.
The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.
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The Atlantic notes that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches, and makes a business’ “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.
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A separate article in the Washington Post on Monday notes that what is also so controversial about Indiana’s RFRA is its “timing.”
Indiana enacted its law after the federal courts ruled that same-sex marriage was now legal in the Hoosier state. Indiana not only didn’t have same-sex marriage, it didn’t (and still doesn’t) have a law that protects against discrimination based on sexual orientation or gender identity.
RFRA was a way for the Indiana legislature to do something in response to the same-sex marriage ruling. RFRA was seen as a way to give residents and businesses that objected to same-sex marriage a way around having to cater to same-sex couples.