Yesterday Indiana Gov. Mike Pence (R) signed what the authors titled the “Religious Freedom Restoration Act.” They should have titled it the “Religious Sovereign Citizen Act.” (More)
The public debate about the bill focused on whether businesses can discriminate against LGBTs and, despite Gov. Pence’s denials, some of the bill’s authors admitted their goal was to permit exactly that.
The bill’s signing drew an immediate response from Yelp CEO Jeremy Stoppelman:
I hope that in the future the legislatures in the nineteen states that have these laws on the books will reconsider their actions. In the mean time, Yelp will make every effort to expand its corporate presence only in states that do not have these laws allowing for discrimination on the books.
I also hope that other companies will draw a similar line in the sand for equality on behalf of their employees and the greater public to persuade legislators to do the right thing and stop or rescind these harmful laws.
Salesforce CEO Marc Benioff said his company will also reduce their investment in Indiana, and NCAA President Mark Emmert said they will consider whether to move future events and may even move their Indianapolis headquarters. Many businesses are concerned about the public backlash, and LGBT activist George Takei called for a statewide boycott:
— George Takei (@GeorgeTakei) March 26, 2015
LGBTs are right to be upset, and anyone who believes in equal protection under the law should share their outrage. Because Indiana Senate Bill 568 creates a special standard for ‘religious’ objections to any law.
Section 1 of the law defines a “burden” as any action that “(1) constrains, inhibits, curtails, or denies the exercise of religion by a person; or (2) compels a person to take an action that is contrary to the person’s exercise of religion,” and that includes “withholding a benefit … assessing a criminal, a civil, or an administrative penalty [or] excluding a person from a governmental program or denying a person access to a governmental facility.”
Section 2 defines a “compelling governmental interest” as “a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.”
Section 3 defines “exercise of religion” as “a person’s ability to (1) act; or (2) refuse to act; in a manner that is substantially motivated by the person’s sincerely held religious belief, regardless of whether the religious belief is compulsory or central to a larger system of religious belief.”
Section 4 defines a “person” to include an individual, association, partnership, limited liability company, corporation, church, religious institution, estate, trust, foundation, “or any other legal entity.”
Section 5 defines “state action” as “(1) the implementation or application of state or local law or policy; or, (2) the taking of any other action; by the state or a political subdivision of the state.”
And then we get the heart of the bill, a special legal standard for people who say “that law violates my religion:”
Sec. 6. A state action, or an action taken by an individual based on state action, may not substantially burden a person’s right to the exercise of religion, even if the burden results from a law or policy of general applicability, unless the state or political subdivision of the state demonstrates that applying the burden to the person’s exercise of religion is:
(1) essential to further a compelling governmental interest; and
(2) the least restrictive means of furthering the compelling governmental interest.
This mirrors the 1993 Religious Freedom Restoration Act. That bill was authored by Sen. Chuck Schumer (D-NY), passed by an almost unanimous Congress, and signed by President Bill Clinton. Most of the Democrats who supported the bill thought they were shielding minority religions, in response to the 1990 U.S. Supreme Court decision in Employment Division v. Smith that allowed Oregon to deny unemployment benefits to people who used peyote in Native American religious rituals.
But as so often happens with civil rights laws, America’s dominant religions turned the RFRA’s ‘shield’ into a sword to enforce their beliefs on others. For example, in Hobby Lobby v. Burwell, the U.S. Supreme Court held that for-profit businesses could exclude contraception from employees’ health insurance if the owners cited a religious objection. The Court cited a “less intrusive means” – the government could provide that coverage if businesses certified a religious objection – but then held in Little Sisters of the Poor that even the requirement to file that certification of religious objection violates the free exercise of religion.
In short, the RFRA has become a Religious Sovereign Citizen Act. Anytime someone cites a “sincerely-held religious belief” in objection to a law, the government must prove that the law serves a “compelling governmental interest” and that “no less intrusive means” would fulfill that interest. And as the Court demonstrated in the Hobby Lobby and Little Sisters cases, judges can cite a “less intrusive means” in one case and overturn that same means in another.
As a matter of critical legal theory, the deeper problem is that power relationships skew the application of ‘neutral’ laws. Without an RFRA, courts let governments discriminate against minority religions. Under the RFRA, dominant religions claim a ‘free exercise’ right to ignore zoning laws, ignore the Civil Rights Act, refuse to fill prescriptions, refuse requests for adoption, and refuse to issue marriage licenses.
Of course, we’ll see the limits the first time an Indiana family declares that their marriage or divorce must be governed by sharia. Once that happens, expect the Indiana legislature to revive a 2011 bill to ban “foreign law” – including sharia – as an exception to their RFRA.