Indiana's 'religious freedom' law: How it came to be
Controversial religious freedom bill rooted in peyote, Hobby Lobby cases
Asked if he'd anticipated such a strong backlash to his state's "religious freedom" bill on Monday, Indiana governor Mike Pence struck an appropriately religious tone.
"Heavens, no," he told reporters.
Rarely, perhaps never, has the Hoosier State's reputation taken such a hit as now, with large event cancellations, a #BoycottIndiana movement on Twitter and celebrity denouncements of the new law as homophobic.
According to legal experts, the origins of the controversial bill go back 25 years to U.S. court rulings involving a peyote ritual as well as to the refusal last year by a Christian-owned crafts store to cover birth control for employees under Obamacare.
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Pence has referred to the legal precedents before, comparing the Indiana statute to the federal Religious Freedom Restoration Act signed by former U.S. president Bill Clinton in 1993.
He has also pointed to 20 other states that have enacted RFRA.
In his bid on Monday to "set the record straight," though, legal experts say the governor downplayed why his bill stands apart from other RFRA legislations, even if the laws share a name.
A key difference is how Indiana's statute defines a "person" with the rights to exercise religious freedom.
In Indiana, corporations are considered persons under the law and so "we have a situation where for-profit businesses have religious rights," said University of Baltimore law professor Garrett Epps.
That's not the case in most other state RFRA laws, nor does it apply in the federal act.
"Can you put up a 'No gays allowed' sign on your commercial apartment? Or say we don't hire gays at this for-profit company?" Epps said. "Can I say my restaurant doesn't cater to same-sex couples, get out?"
With important civil rights questions lurking, Epps says, the Indiana law isn't clear one way or the other.
"For the background on this case, you need to look back to 1990," he said.
That was the year Alfred Smith and Galen Black, both members of the Native American Church, lost their jobs after participating in sacramental use of peyote, a cactus-like hallucinogen.
Although they consumed the peyote as part of a religious rite, their employer denied them unemployment benefits on the grounds that they were sacked for drug-related misconduct.
Proponents of Indiana's statute have cited the peyote case as the catalyst for its RFRA.
Smith took the fight to the U.S. Supreme Court and ultimately lost.
"And so began this three-year process to draft the federal Religious Freedom Restoration Act," to get around the court ruling and allow for the expression of traditional rites, Epps said.
Following another ruling in 1997, however, that federal RFRA – the one Pence says Indiana's statute is modelled after – was held unconstitutional as applied to states.
About 20 states then filled the gap by enacting their own bills to protect religious freedoms.
It's not for minority religionists anymore, but groups trying to get exemptions from the laws they don't agree with politically.- Katherine Franke, director of the Centre for Gender and Sexuality Law at Columbia Law School
Some, such as the Illinois RFRA, passed in 1998, adhered to the federal law. Others, such as the act Texas passed in 1999, contained clauses explicitly saying their RFRA cannot override civil-rights laws.
"The Indiana law is much broader," said Katherine Franke, director of the Centre for Gender and Sexuality Law at Columbia Law School.
In the nearly two decades since Clinton signed the federal RFRA, it has been "captured" by fundamental Christians for their own interpretation, she said.
"It's not for minority religionists anymore, but groups trying to get exemptions from the laws they don't agree with politically," she said.
As a result, she said, critics of the Indiana law fear it could create a "super-right" for religious liberty to trump all other interests.
It was against this backdrop last summer that a Christian-owned chain of arts-and-crafts stores called Hobby Lobby won a U.S. Supreme Court decision.
The company had argued that it would be a violation of Hobby Lobby's federal RFRA rights to force the family company to provide coverage for contraceptives under Obamacare.
Religious-liberty lawyer Mark Rienzi, whose firm represented Hobby Lobby, said the case has been seized upon by critics "trying to paint all these RFRA laws as bigotry."
"The truth of the matter is, people who benefit are generally religious minorities," Rienzi said. "They're not businesses that don't want to service gays, of which the critics will find zero."
On Monday, Pence stressed a need to "clarify" Indiana's act as a means of protecting religious minorities to avoid burdens on their faith.
He said the act is not intended, as critics have alleged, to allow businesses to discriminate against anyone or deny services to gay and lesbian couples.
Still, there is some room for that to occur under the current law, argues Yeshiva University constitutional lawyer Marci Hamilton.
While Hobby Lobby was protected under the federal act as a "closely held corporation" with a handful of owners, the Indiana text goes further by essentially allowing any corporation to have rights to religious freedom.
Indiana's statute also extends the religious protection to lawsuits between private individuals.
"That feature opens the door to business owners being able to discriminate against same-sex couples," Hamilton said.
Beyond textual differences in the acts, Indiana University religion and law professor Rob Katz also sees something revealing in the timing of the Indiana bill.
Indiana has had 20 years to enact its own RFRA, yet it "only recently jumped on the bandwagon," Katz said.
Just six months ago, he noted, the Supreme Court declined to hear an appeal invalidating same-sex marriage ban in Indiana.
"What's prompted Indiana to enact its own RFRA right now? The answer isn't hard to fathom," he said.