Republicans and pundits alike are arguing that Indiana's "religious freedom" law is no different from the federal law that a Democratic Congress and President Clinton passed in 1993, and no different from the Illinois state law that Democrats, including State Senator Barack Obama, voted for and passed in 1998.
But as Judd Legum at Think Progress points out, that is false.
Indiana's bill goes much further than the 1993 federal law or any other state law:
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”
Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens. This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”
This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.
Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”
Again, the bottom line is that every other state version of this law, and the federal law Clinton signed in 1993, protects private citizens' religious beliefs
from the government. The Indiana law is the
only one that applies to disputes between private citizens. It's that second part, the aforementioned Section 9 of the law, that
specifically opens up the Pandora's Box of discrimination and says that a private citizen's religious beliefs can trump another private citizen's actions and
allows them to use the law as legal cover to do so.
That's the difference. The law is a blanket permission to discriminate, plain and simple. It's effectively a Stand Your Ground defense law for bigotry. If you choose to discriminate against someone, you can claim the law as a defense if you feel your "exercise of religion is substantially burdened."
Oh, and Section 9 also defines person in this case as "not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity" as Legum mentions up there. You can imagine what this can mean. If Indiana's Hobby Lobby locations wanted to refuse to serve LGBTQ customers on religious grounds, then they could theoretically claim this law as a defense and say that allowing them to shop there would "substantially burden" their "exercise of religion".
Indiana's law is particularly awful, hence the backlash. The legal difference is the clause that allows the law to be claimed as a defense in disputes between private citizens.
I'm expecting that part to be challenged in court.
For now, it's being challenged in the court of public opinion. The front page of the Indianapolis Star:
We are at a critical moment in Indiana's history.
And much is at stake.
Our image. Our reputation as a state that embraces people of diverse backgrounds and makes them feel welcome. And our efforts over many years to retool our economy, to attract talented workers and thriving businesses, and to improve the quality of life for millions of Hoosiers.
All of this is at risk because of a new law, the Religious Freedom Restoration Act, that no matter its original intent already has done enormous harm to our state and potentially our economic future.
The consequences will only get worse if our state leaders delay in fixing the deep mess created.
Half steps will not be enough. Half steps will not undo the damage.
Only bold action — action that sends an unmistakable message to the world that our state will not tolerate discrimination against any of its citizens — will be enough to reverse the damage.
Gov. Mike Pence and the General Assembly need to enact a state law to prohibit discrimination in employment, housing, education and public accommodations on the basis of a person's sexual orientation or gender identity.
Good luck with that, Indiana. You elected Republicans. This is what Republicans do.
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