Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, March 30, 2015

Indiana’s RFRA Act


It should come as no surprise to us of the present age that religion plays a key role in political life. Recently the State of Indiana enacted its Religious Freedom Restoration Act that parallels Federal legislation and statutes of many other states of the Union. Unfortunately, some American citizens or interests are keen on exposing the so-called discrimination or potential discrimination that this kind of legislation may perpetrate against fellow citizens who are part of the sexual orientation and gender identity movement.

Powerful influences including elements of the media, the NCAA, and large corporations that publicly support the political, social, and cultural initiatives of this movement have been adding their objections to this new legislation which reflects what has been the law for some time in other jurisdictions. Could it be that there is something in the text of the Indiana law that is different? I do not think that is the real issue. The real issue resides in the text itself and what the text is supposed to protect, which I shall address in a moment.

The opponents of the new Indiana law are now pressuring the legislators and the governor, who supports the legislation, for clarifications. But are clarifications needed? This is where a careful examination and interpretation of the text are in order. After all, words and their meanings are important to the law as are the entire texts. In my discussion today, I am relying on Indiana Senate Bill No. 568 introduced on January 20 of this year and enacted this past week. The text is HERE:  Download SB0568.01.INTR.

The substance of the legislation is contained in Section 6 that provides that state action or the action of an individual based on state action cannot “substantially burden a person’s right to the exercise of religion, even if the burden results from a law or policy of general applicability.” The same section further provides that a burden to the right of religious free exercise may be lawful and trump the right of religious freedom if the burden is “essential to further a compelling governmental interest” and is “the least restrictive means of furthering the compelling governmental interest.” This language essentially tracks Supreme Court jurisprudence, albeit at times confusing, on the nature of religious liberty.

The first five sections of the legislation contain the definitions applicable to the intent and purpose of the new law. I find two of the definitions crucial to meeting the general opposition to the state RFRA that opponents of the bill are voicing. Section 3 defines the phrase “the exercise of religion.” The definition can be fairly distilled as the practice or observance of a person’s [defined in Section 4] ability to act or to refuse to act in a manner that is substantially motivated by the person’s sincerely held religious belief. Inherent in this protected right is the defense of the person who is acting or refusing to act on the grounds of that person’s religion. This protected right does not impose on the non-believer or someone who adheres to some other faith. It protects the claimant who is exercising a Constitutional and now an Indiana statutory right. It does not interfere with the legal rights of others who may disagree with the religious tenets in issue.

To understand this point further, it is useful to look at the second important definition to which I alluded a moment ago, and this definition concerns the “compelling governmental interest” that can derogate the protected right of religious freedom under specified circumstances. A “compelling governmental interest” is defined as “a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.” I have emphasized two passages with italics.

While the first italicized phrase might profit from a definition, I do not think that a definition essential to the protection of all legitimate interests at stake. The phrase “the highest magnitude” suggests a crucial legal, perhaps even constitutional, principle that is essential to the integrity and survival of the Republic, the State of Indiana, and the commonweal/common good. Opponents to the legislation appear to ignore this element of the text when they argue that the Indiana law “could make it easier for religious conservatives [the legislation does not use the term “conservative” anywhere] to refuse service to gay couples.” What might these services be? The denial of some services to anyone might actually be a lawful act of discrimination rather than an unlawful act of discrimination.

For example, an innkeeper might discriminate against a would-be customer if the innkeeper refuses to serve alcohol to someone who is already intoxicated or underaged. This refusal could be compelled not only by law but also by a person’s sincerely held religious belief that the intoxicated or underaged person should not be served. Might the proprietor of a bed and breakfast refuse to accommodate a single person? Unless the single person is rowdy, a known fugitive from justice, travelling with an animal, etc., it would be difficult for the proprietor to refuse accommodation on the grounds of religious freedom as the law is designed to protect. But what if it is a couple of persons? Does it matter if they are of the same-sex or opposite-sex? Could the proprietor rely on the provisions of this law to deny accommodation to either couple and not trigger the compelling governmental interest standard of the highest magnitude? It would seem that the right of religious freedom (or conscience which is not directly addressed by the statute’s language) as enshrined by the law would protect the proprietor who knows that the opposite-sex couple is not married. Why should the same-sex couple be treated differently by forcing the proprietor to provide them with a room with a large bed? (Perhaps the circumstances would be different if this couple were Queequeg and Ismael from Melville’s Moby Dick, but I digress.) Is there a compelling governmental interest of the highest magnitude that is at stake? Would it matter if the proprietor of the business relying on the religious liberty protection operates a bakery and objects to an opposite-sex couple who want a cake to celebrate their living together out of wedlock or a same-sex couple who order a cake to celebrate their commitment or union under state law?

The point here is this: must a person seeking the protection of this law conform his, her, or its religious conscience and thereby sacrifice his, her, or its religious faith to the sin of someone who desires to have his, her, or its action declared a compelling governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the religious person’s free exercise? It strikes me that, given the context of those objecting to this law, this is precisely the objective that they are seeking. They are pursuing the goal because they see no sin or sin is inconsequential; it is irrelevant to them that they are asking another person to cooperate and participate in their sin. This circumstance parallels what medical providers are now facing from their licensing authorities when they are forced to refer a patient to a medical provider who will provide the service they cannot provide due to their sincerely held religious belief or conscience.

As I keep going over the text of the new Indiana law and consider the objections raised by its opponents, I see strong parallels to what Henry VIII did in England from 1533-35. Both the king and the opponents of the Indiana law will not tolerate anyone who disagrees with their objective from escaping. All must conform to the goals of the law’s opponents, and sincerely held religious beliefs will be no defense. We know what happened during and after 1535 in England. Is this same thing really required under the rubric of a compelling governmental interest of the highest magnitude today? If so, then sin wins once again and virtue is at forfeit.


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Araujo, Robert | Permalink