Published April 2, 2015
The most important thing about the controversy surrounding Indiana’s Religious Freedom Restoration Act is that it has brought much needed attention to an entire class of laws, said UB associate law professor Michael Boucai.
“Most other RFRAs don’t go as far as Indiana’s, but they’re still deeply problematic,” Boucai said. “Some, if not all, of the objections that we’re suddenly hearing in relation to the Indiana law could also be raised against other RFRAs.”
But there are key aspects to Indiana’s law that make it different.
The first ‘surprising’ part of Indiana’s law is that it covers for-profit businesses, Boucai said. In this way, the statute reflects the logic of Hobby Lobby, a case about mandatory insurance coverage of contraception, where the Supreme Court announced that for-profit corporations have free exercise rights under the federal RFRA.
The law also allows any “person” – again, defined to include businesses – to assert a burden on their free exercise of religion not only in suits against the government, but also in suits against private parties, he said.
“This is why it’s said that the law permits discrimination against LGBT people,” Boucai said. “People are imagining a scenario – and things like this have happened in many places – where a florist or a wedding photographer refuses to service a same-sex wedding, gets sued for discrimination by the rebuffed couple and then prevails in court by asserting a burden on religious freedom under the Indiana RFRA.”
Indiana doesn’t have a law prohibiting discrimination based on sexual orientation or gender identity, Boucai said, and that is why a number of prominent voices are now calling for enactment of such a law.
While that would be an improvement over no anti-discrimination law at all, it’s not clear that it would solve the problem with the RFRA, he said.
“It seems Indiana’s RFRA was written precisely with the purpose of trumping anti-discrimination laws,” Boucai said. “It’s true Indiana’s RFRA permits a governmental entity to show that an alleged burden on religious liberty furthers ‘a compelling governmental interest’ and is the least restrictive means of furthering that … interest,” Boucai said. “But the law doesn’t grant private actors, like the hypothetical same-sex couple seeking a wedding photographer, to make a similar showing.”
However, this issue is far from solely an LGBT one, he said.
People have religious convictions about any number of things, he said. One can imagine demands for religious exemptions from laws that prohibit racial discrimination, laws mandating that insurance provide full coverage of reproductive health expenses, laws prohibiting animal cruelty, vaccination laws and environmental laws, to name a few, Boucai said.
“It’s important that the public see how these RFRAs – not just Indiana’s – open the door for every person to become a law unto her – or himself. In that way, these laws are enacting as a statutory right what the Supreme Court, in cases involving Mormon polygamy and the ritual use of hallucinogens, has consistently and wisely rejected as constitutional right,” he said.