The Washington Post article largely mirrors the argument advanced by Indiana Governor Mike Pence. Appearing on ABCs This Week, Pence claimed Then state-Sen. Barack Obama voted for [the Religious Freedom Restoration Act]. The very same language.
The same argument is parroted on Fox News and elsewhere.
Its not true.
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.
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. Indianas 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, Arizonas 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 states 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 employers, their landlords, their local shopkeepers, or a police officers private religious beliefs.
Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction and then goes even further.
This is evident in Section 5 of the Indiana law which provides protections to religious practices whether or not compelled by, or central to, a system of religious belief. So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.
Beyond the differences between the Indiana law and other states, many of the other states that have a RFRA also have a law that prohibits discrimination based on sexual orientation. Indiana does not have one.
