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Hoosier Hullabaloo


Hoosier Hullabaloo

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Legal scholars are perplexed at the furor over the enactment of the Religious Freedom Restoration Act (RFRA) in Indiana on Thursday, given that the majority of states already have comparable laws in place.

Indiana is the 20th state to pass a RFRA bill, and another 11 states have interpreted state constitutions to provide similar protections. Eleven other state legislatures are contemplating RFRA action this year.

The Indiana bill is nearly identical to the 1993 federal RFRA that President Bill Clinton signed into law after unanimous passage in the U.S. House and only three dissenting votes in the Senate. This week, the Indiana Senate passed the measure 40-10 and the Indiana House approved by a 63-31 vote.

Despite these broad majorities, business groups and liberal denominations immediately threatened to withdraw planned conventions from Indiana after Gov. Mike Pence signed the legislation. Even the NCAA expressed reservations about the upcoming Final Four tournament being held in the Hoosier State.

Various media accounts have raised the specter that the law will be fodder for discrimination against lesbians, gays, bisexuals, and transgender (LGBT) people. Pence denied such a possibility when he signed the bill.

Tim Schultz, president of 1stAmendment Partnership in Washington, D.C., says activist LGBT groups have been making a lot of noise about the mayhem that will result from Indiana's bill, but the actual impact will be minimal.

"We can look at the empirical evidence to verify what this law will do," says Schultz, who has testified about RFRA bills in seven states. "The laws are working in the 19 other diverse states that have laws in place." 

Schultz says there is nothing in the Indiana bill promoting discrimination against LGBT Americans.

"These bills send a signal many in our culture object to," Schultz says. "I do not believe the cultural signal, as the objectors are interpreting it, is the right one."

Assemblies of God General Superintendent George O. Wood notes that the First Amendment gives paramount importance to barring Congress from making laws respecting the establishment of religion or prohibiting its free exercise.

"The Indiana legislature and governor have acted in accordance with the spirit of this protection provided in the Bill of Rights," Wood says. "This act is not an attack on any group, but rather a much-needed protection from the current assault to sharply limit the free exercise of religion."  

Wood notes that the Fellowship's biennial national convention, which typically attracts more than 30,000 people, has taken place in Indiana on various occasions. He says the AG looks forward to the potential of again meeting in Indiana in the future.

Richard W. Garnett, law professor at the University of Notre Dame - located in South Bend, Indiana - says that the state RFRA bill isn't designed to handle private disputes, such as a Christian baker or photographer who refuse to participate in a gay or lesbian wedding. Rather than sparking a spate of lawsuits involving private parties, Garnett says most RFRA cases involve disputes between the government and a religious individual or group, and only then if the state has a compelling reason to interfere.

Garnett was one of 16 law professors from around the country who sent a letter to Indiana Senate Judiciary Committee Chairman Brent Steele last month endorsing the RFRA legislation. The signatories included Mary Ann Glendon of Harvard, Carl H. Esbeck of the University of Missouri, Douglas Laycock of the University of Virginia, Daniel O. Conkle of Indiana University, Edward McGlynn Gaffney of Valparaiso, Michael W. McConnell of Stanford, and Robert P. George of Princeton. They said the Indiana bill was "based on many years of teaching and scholarship on the law of religious freedom."

"State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths," the law professors wrote. "State RFRAs do not usually wind up applying to a large number of litigated cases."

In a letter printed Thursday in the South Bend Tribune, Garnett said the measure doesn't give anyone a license to discriminate. He pointed out that RFRA laws don't ensure that people of faith who believe they have been wronged necessarily will achieve legal victory in a court case that could take years of protracted litigation.

"It does not say that members of religious minorities will be successful if they seek exemptions, only that they are entitled to a day in court," Garnett wrote. "It requires accommodations and exemptions only when they would not undermine a compelling public interest."

Although the U.S. Supreme Court in 1997 in City of Boerne v. Flores ruled that RFRA can't be applied to state or local situations, it still is the federal standard that government may only "substantially burden" religious practice by demonstrating a "compelling interest" achieved through the "least restrictive means." Identical language is in the Indiana bill.

Last year, Hobby Lobby cited the federal RFRA in successful arguments before the Supreme Court in seeking religious protection from the government mandate requiring businesses to provide contraception for employees.

Indiana State House photo used in accordance with Creative Commons license. Photo credit: bormang2, Flickr


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