Supporters (accidentally) reveal why the Indiana law is different

Rob Tisinai

March 30th, 2015

Supporters of Indiana’s “religious freedom” bill have dishonestly claimed it’s just like its cousins in federal law and 19 other states. But the irony of pushing a lie again and again is that your efforts might inadvertently uncover the truth. That’s exactly what happened with The Federalist’s article, “Meet 10 Americans Helped By Religious Freedom Bills Like Indiana’s.” It gives examples of people whose religious freedom was protected from senseless government intrusion, like:

  • Native American children who wanted to keep their hair long, despite school policy,
  • A Jewish prisoner denied Kosher meals, and
  • A religious non-profit that “provides housing and religious instruction to petty offenders released from state prisons,” but was threatened by a new city ordinance.

It’s a great list. These are everyday people, often in powerless situations, who simply want to live according to their beliefs without harming anyone. But it’s a bad list, too, because far from showing how the Indiana law is just like the others, it actually highlights two key differences.

1.  No one was harmed by the free exercise of religion in these cases.

Long hair, kosher  meals — no one can claim real harm from such things, nothing they could prove in court, at least. And if some private individual had been harmed, they could have sued, because the federal Religious Freedom Restoration Act (and most state RFRAs) doesn’t offer protection against suits brought by private individuals.

But the Indiana law is different. It provides exactly that sort of protection. It’s what this part of the law means:

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.

I emphasized the key bit. Other laws don’t contain this. Other laws require the government to be part of the action before you can invoke an RFRA defense. But if I, as a private citizen, can show you’ve harmed me — say, by firing me from a job or denying me housing or services — then I can bring suit on my own and you can’t invoke an RFRA in your defense. In Indiana, though…you can.

I hope that doesn’t seem trivial. Consider: when only the government is involved, when no one can actually prove harm (as in the cases above), there’s a good chance the intrusion on religious freedom really is pointless, and it makes sense to protect against it. But when it goes beyond the government, when your free exercise is harming those around you to the degree that they can prove damages in court, then you’re just claiming a special religious right to hurt people. And is that what we want religious freedom to be?

2. None of the people or group protected were for-profit organizations.

Our hearts and minds go out to the people on this list because they have a personal conscience or (in the case of the halfway house) their entire existence is centered on religious conviction. That isn’t generally true of for-profit businesses (and certainly not at a place like Exxon, for instance, which for years refused to include gay people in it nondiscrimination policy). That’s why most RFRAs only protected individuals — actual living humans — and religious groups. This may have changed with the Supreme Court’s Hobby Lobby decision, but it was never the intent of the people who passed those laws.

But the Indiana law is different. It explicitly includes things like a “partnership, a limited liability company, a corporation,a company, a firm, a society, a joint-stock company…regardless of whether the entity is organized and operated for profit or nonprofit purposes.” Sure, you’ll need to show the individuals involved “have control and substantial ownership of the entity,” but, hey, that’s what legal departments are for. This is an enormous expansion, and whether you think it’s justified or not, you can’t claim it’s just like all the other RFRAs that have been around for years.

This all takes us far away from where we started: Powerless individuals and constitutionally-protected religious groups who want to live their lives and fulfill their missions while doing harm to no one. We end up with a whole new arena filled with for-profit businesses that have a new, potentially potent defense they can invoke as convenient when they do harm. It’s just like in the Bible, except in this bizarro version, Jesus is on the side of the money-lenders.

Nathaniel

March 31st, 2015

Rob, to be fair, the Federal RFRA has been interpreted by multiple Circuits to include suits against private individuals/organizations (including the 9th Circuit). So, while the language doesn’t explicitly say this, several Circuits have allowed it implicitly. State courts within those Circuits might also interpret similarly worded state laws equally broadly. Until SCOTUS clarifies that issue, your first point is not explicitly unique to the IN law.

Nathaniel

March 31st, 2015

Btw, thanks for sharing the list. After glancing over it, some thoughts occur to me on how this demonstrates the cherry-picked nature of the list.
1st – with the exception of one loser (which makes a liar out of their title – although I see the value in these examples) and an obvious case of humanitarian aid, the cases listed are non-Christian. Are there really so few Christians who have tried to advance their cause with these laws? Or are the writers trying to make it seem as if the real beneficiaries are other faiths, “so don’t blame us Christians for this law”?
2nd – many of these cases seem to be simple 1st amendment violations. Was the RFRA really necessary to help the people in question? Aside from expanding the definition of “religion” and “person,” I’m not sure what the benefit of such laws is.
3rd – their final case shows why people of faith should be concerned. A court decided that the religious convictions of the people in question weren’t sufficiently real enough to justify violation of the law. Is this something people of faith really want, intense scrutiny of the depth of their belief? Of course, more recent RFRAs seem to have found a way around that – define religious belief to be so broad as to include arbitrary, spur-of-the-moment decisions.
I would especially love to hear answers to my point 2 question, but nobody even seems to be asking that.

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