The fix that wasn't: law professor says Indiana legislature demoted religious freedom

South Bend, Ind., Apr 10, 2015 / 15:20 pm

A Notre Dame law professor says religious liberty in Indiana was set back by the state legislature's hasty reaction to strong criticism of a law intended to strengthen religious freedom protections.

"The fix is a substantial, and in my judgment misguided retreat from the original Religious Freedom Restoration Act, and I think it gives away too much of religious liberty," Professor Gerard V. Bradley said in an April 6 phone conference sponsored by the Federalist Society.

"Those in favor of religious liberty should have opposed the fix, and even have been prepared to repeal the Indiana RFRA if that's what it took to avoid enacting the fix," he continued, charging that the amendment "bears all of the signs of a piece of legislation drafted in a hurry, passed in haste, and frankly not very well thought out."

In Bradley's view, the amended bill shows that legislators see religious conscience as "secondary in importance and value to the right to be free of discrimination."

Indiana Gov. Mike Pence on March 26 signed legislation declaring that state and local governments may not substantially burden a person's right to the exercise of religion, unless they demonstrate a compelling government interest and use the least restrictive means to further that interest.

The law was in large part modeled on the federal Religious Freedom Restoration Act of 1993, which passed Congress almost unanimously and was signed into law by Bill Clinton. The legislation is intended to restore religious protections which had been eliminated by Supreme Court decisions.

The initial Indiana law did not mention sexual orientation, but it became the subject of intense media coverage which depicted it as "anti-gay." CEOs, celebrities, major sports events and leaders of some city and state governments threatened boycotts or otherwise criticized the law as discriminatory.

The Indiana legislature amended the law to say that it was not intended to allow discrimination in the provision of services, facilities, public accommodations, employment, or housing to the general public on the basis of several characteristics, including race, religion, disability, sex, sexual orientation and gender identity. Gov. Pence signed that legislation on April 2, saying he wanted the legislature to clarify that the legal standard "would not create a license to discriminate."

Bradley said the action solved the immediate political problem facing Indiana, but had "alarming features" from the perspective of religious liberty.

The law professor said he agreed with what he believed to be the critics' concerns that no law should allow the denial of services like restaurant or hotel accommodations to people based on their sexual orientation.

However, he distinguished between orientation and conduct, and said the debate over the initial legislation was "commandeered" by those who said that it would "allow religion to license and privilege discrimination."

Bradley said the amended law now has a "very, very narrow exemption" that applies religious liberty protections only to churches and non-profit religious organizations.

It offers no protections to closely-held businesses or to non-profit non-religious entities.

The amended Indiana law would offer "no protection" to a Christian bookstore with a handful of employees, a kosher butcher shop, or small psychology counseling firms or family therapy firms that work from a Christian perspective.

"Those persons would have no protection under this law" and would be obliged to hire people who did not share their religious viewpoint, Bradley said.

Unlike standards in other laws and regulations, there is no exemption for small proprietors of boarding houses or businesses composed of five or six employees.

"The fix goes way beyond the problem to which it is supposed to be a solution," he said.

He added that the amended law, for the first time in Indiana state law, uses phrases like "sexual orientation" and "gender identity," but does not define them.

Bradley reflected on the need to change the narrative about religious freedom protections.

"The way to really understand what's going on is to have a different narrative in place," he said, recommending that religious freedom advocates give "a much greater, fuller account of how religion contributes to diversity."

For Bradley, the diversity that's most at risk in the marketplace and in public life is not diversity of sexual orientation but diversity of religious points of view.

"Especially in wedding services, we're looking at whether there should be an ideological cleansing of certain professions or certain trades so that persons with traditional religious convictions would no longer be able to enter those professions or perform in those trades," he explained. "I think that's a great loss of diversity, reduces pluralism, and sends the wrong message to believers."

What's at stake, he said, is whether a person of traditional religious convictions "can actually become a wedding photographer or a wedding florist."

Bradley said a better modification to the Indiana law could have satisfied both sides in the debate by focusing "strictly upon conduct." The law could have barred requiring a service provider to participate in an activity contrary to their religious beliefs "so long as reasonable alternatives to that service were available."