Author: Sarah Posner
Now that both Indiana and Arkansas have enacted their Religious Freedom Restorations Acts, with each altered in response to an unprecedented and swift-moving opposition, it’s worth taking a look at what the landscape looks like going forward.
First, laws designed to provide a defense to businesses who refuse to serve LGBT couples, or who refuse to cater or photograph same-sex weddings, are not popular. One poll, from the Public Religion Research Institute, found that just 16% of respondents supported such laws. Jeb Bush, who had initially defended Indiana Governor Mike Pence and the RFRA that caused the vociferous backlash (albeit with little apparent understanding of how RFRAs function in the legal system), later said he would have preferred a “consensus-oriented” approach to a law that would not allow discrimination against LGBT people.
The Indiana fix–adding language that the law couldn’t be used to discriminate against people based on their sexual orientation–addressed the major issue that had generated the backlash. But its still legal under Indiana law to discriminate against people based on their sexual orientation, even though some municipalities in the state bar it. The Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, said in a statement, “we still don’t believe these nondiscrimination provisions go far enough.”
But there are legitimate concerns beyond how these new RFRAs could be used to treat LGBT people. As the American Civil Liberties Union has said, while the new provision in the Indiana RFRA is a “major improvement, ” the law as now enacted “still poses a risk that it can be used to deny rights to others, including in education, access to health care, and other aspects of people’s lives.” Although the new law’s religious freedom claims and defenses are no longer available to for-profit entities, they still are available to non-profit entities who can invoke its provisions to raise religious objections to providing service.
While Indiana lawmakers supporting the RFRA were, as documented in this well-reported piece in the Indianapolis Star, motivated to provide legal protections to businesses that refuse to provide services to same-sex couples or for same-sex weddings, other comments by lawmakers show their intent was broader. Republican Rep. Bruce Borders suggested anesthesiologists who oppose abortion should not have to anesthetize women undergoing the procedure. The Indianapolis Star reported that “Borders said he believes the Bible’s command to ‘do all things as unto the Lord’ means religious believers need to be protected not just in church, but in their workplaces as well.” If that workplace is a religious non-profit, like a hospital or university, the new language appears to give those entities the right to assert a religious exemption if they object to the services required for a particular patient or person.
In Arkansas, by contrast, the law was changed to ensure that it could only be invoked in cases in which the government is a party, just as in the federal version.
Proponents of these new RFRAs have continually argued that the federal RFRA, enacted in 1993, had widespread and bipartisan support. They frequently ask why those who supported RFRA’s passage in 1993 now protest the new RFRAs go too far.
The answer lies in how the courts have interpreted the federal RFRA. At the time, it looked like a needed fix to protect individuals who, for example, were barred from receiving employment compensation after being fired for smoking peyote, an essential part of a Native American ritual. In 20 years, though, it has been expanded, in Burwell v. Hobby Lobby, to confer rights on closely-held corporations seeking to deny their female employees the benefit of no-cost insurance coverage for birth control.
The debate on these laws is far from over. While the focus over the past week has been on their impact on LGBT people, Supreme Court precedent points to a wider reach. The innovation, if you will, of Hobby Lobby was not just allowing a closely-held corporation to invoke religious freedom rights. It was how the Court assessed, in favor of the corporation, the impact of religious freedom claims on third parties generally.