It didn’t take long for battle lines to be drawn when Indiana Gov. Mike Pence signed his state’s Religious Freedom Restoration Act (RFRA) into law late last week. Proponents of the bill insisted that it simply offers additional protections to religious people practicing their faith. Critics assailed the statute as a thinly veiled license for businesses and private parties to discriminate against the LGBT community. With socially conservative advocacy organizations including Advance America and the American Family Association of Indiana present at the bill signing, it was hard to combat the notion that the Indiana RFRA was a kind of consolation prize for those who had lost the fight to ban gay marriage in Indiana last year.
The notion of religious freedom appears to have become the newest front in the culture wars as same-sex marriage becomes legal in more states around the country and with the U.S. Supreme Court set to rule on the issue by the end of June.
“The meaning of these laws has changed now that they’re very much embedded in these culture-war fights,” said Douglas NeJaime, professor at the University of California Irvine, who specializes in sexual orientation law. “Social conservatives attempted to get a constitutional amendment through the legislature banning same-sex marriage and they were defending Indiana’s marriage ban, and they lost both of those things. It’s not accidental there’s been a turn to religious liberty arguments.”
More than 20 years ago, when the federal version of the RFRA — sponsored by then-Congressman Chuck Schumer, D-N.Y. — was signed into law, it was so uncontroversial it passed the House by a voice vote and the Senate 97-3. The bill was seen largely as a reaction to Employment Division v. Smith, a Supreme Court case in which the justices ruled in favor of the state of Oregon denying a Native American man his unemployment benefits because he was fired from his job for failing a drug test after smoking peyote as part of a religious ritual.
But Eunice Hyun Min Rho, advocacy and policy counsel for the American Civil Liberties Union, said that in the late 1990s landlords began using the RFRA as a legal defense when they did not want to rent to unmarried heterosexual couples.
“That sounded the alarm within the civil rights and civil liberties communities,” Rho said. “It really raised concerns about how religion can be used to undermine local and state civil rights law.”
State versions of RFRAs have proliferated once again in the wake of another Supreme Court decision. In Hobby Lobby v. Burwell, the justices narrowly ruled last year that a corporation with religious owners could refuse to provide contraception coverage for its employees on the basis of a religious freedom argument under the federal RFRA.
Following the Hobby Lobby decision, social conservatives saw an opportunity to take up the same religious argument to stave off the march of gay rights, analysts said. States began crafting their RFRA legislation with that goal apparently in mind, with Arizona being the first to confront major backlash for its discriminatory implications. Then-Gov. Jan Brewer eventually vetoed the legislation after it was passed in early 2014, but 13 other states are considering their own RFRA bills.
Critics have said that Indiana’s legislation, like Arizona’s failed bill, is overly broad — both because it allows businesses to invoke religious beliefs and because the RFRA can be used in litigation between private parties, not just in lawsuits where the government is said to be burdening religious beliefs.
In New Mexico, a photography studio tried to invoke a religious freedom defense when a same-sex couple sued it after it refused to provide services for a wedding. The state’s Supreme Court ultimately ruled against the studio, and held that the RFRA did not apply because the government was not a party in the litigation. That would not be the case under Indiana’s version of the law.
“This is the state abdicating its central responsibility to make sure that its citizens are treated fairly,” said Adam Talbot, spokesman for the Human Rights Campaign, an LGBT advocacy group. “There are demonstrated cases where individuals have claimed a right to discriminate and gone to court over it. This is not speculation, it’s not hypothetical. It’s an existing problem that we’ve seen time and time again.”
Robin Fretwell Wilson, director of the family law and policy program at the University of Illinois’ College of Law, said “religious freedom” laws are a clumsy vehicle with which to discriminate. An individual or business trying to use the RFRA to deny services to LGBT individuals would have to prove in court that their religious beliefs were being “substantially burdened,” and that there was not a compelling government interest in compelling them to do so — a difficult sell, Wilson said.
“RFRA’s don’t do that work — I don’t think they do that, and I don’t think they should do that,” Wilson said. “You’re going to lose those kinds of cases, so I think it’s a classic problem of both sides talking about something that is not the real issue. The real issue is that Indiana does not provide these protections for LGBT people.”
Wilson noted that Indiana has no statewide anti-discrimination laws to protect individuals based on their sexual orientation. Adding such a measure would easily allay the controversy over the “religious freedom” statute, giving legal protections to both the faith community and the LGBT population, Wilson said.
The real impact of the Indiana law remains to be seen. Legal experts said it was unclear what kind of court challenges the law would face given the legal precedents set by the Hobby Lobby decision and the federal RFRA. Gov. Pence and state Republicans have also vowed to clarify the law to explicitly state it does not give business the rights to refuse services.
"After much reflection and in consultation with the leadership of the general assembly, I've come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses a right to deny services to anyone," Pence said Tuesday at a news conference. “We want to make it clear that Indiana is open for business.”