The “fix” is in. (I say “fix” because I believe that for many supporters of SB 101, it was less an issue of unintended consequences and more an issue of getting their hands caught in the cookie jar.) SB 50 is apparently being gutted and replaced with language that will amend the newly created IC 34-13-9. Here is my first impression.
As you may recall, SB 101 created IC 34-13-9 and stated that government could not substantially burden a person’s exercise of religion. Exercise of religion was defined fairly broadly and the burden did not have to be central to the person’s religion. If a person demonstrated a substantial burden, the governmental action could continue with respect to that person only if the government demonstrated a compelling interest and that the governmental action was the “least restrictive means” of advancing that interest. My sense was that the political point of the exercise (giving the timing and the identity of the strongest advocates) was to give social conservatives a win against the GLBT community. But, legally, the impact on the rights of gay citizens would not be hugely significant because there aren’t a lot of government protections based on sexual orientation in the first place. Where there might have been a practical impact was in the case of human relations ordinances in various municipalities that did offer protections based on sexual orientation. State law would have trumped those.
The amendment adds two new sections: IC 34-13-9-0.7 and IC 34-13-9-7.5:
Sec. 0.7. This chapter does not:
(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;
(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or
(3) negate any rights available under the Constitution of the State of Indiana.. . .
Sec. 7.5. As used in this chapter, “provider” means one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons. The term does not include:
(1) A church or other nonprofit religious organization or society, including an affiliated school, that is exempt from federal income taxation under 26 U.S.C. 501(a), as amended (excluding any activity that generates unrelated business taxable income (as defined in 26 U.S.C. 512, as amended)).
(2) A rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.
So, let’s break this down. It does not authorize (or establish a legal defense) where a “provider” refuses services, facilities, use of public accommodations, goods, employment, or housing. This is pretty broad. But I’d just flag the legal maxim expressio unius est exlusio alterius (the expression of one thing is the exclusion of the other.) I can’t think of a context for objectionable discrimination that falls outside of services, facilities, public accommodations, goods, employment, and/or housing, but they could exist and if they do, this language probably somewhat strengthens the ability to discriminate in those non-articulated contexts. Specifically, there is no authorization or legal defense for these refusals where they are based on “race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” Again, pretty broad. But if there are non-articulated groups, they might be fair game because they’re not in this laundry list.
Now, what’s a “provider”? Because that language above suggests that non-providers might be able to discriminate on those bases (to the extent otherwise legal). “Providers” are pretty much anyone except for churches and other organizations “exempt from federal income taxation under 26 U.S.C. 501(a)” — but excluding activity generating unrelated business income. (I’m not quite sure how that will play out functionally, they have excluded particular persons based on status as a particular kind of organization but, in a sense re-included the organizations based on activity (as opposed to organizational status). The tax code might provide guidance for this kind of partial carving out of an organization.) Also excluded from the definition of “provider” are “a rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.”
The upshot is that they have defined as non-providers religious people and organizations to the extent they are fairly tightly engaged in religious pursuits. The rest of the world is pretty much prohibited from using RFRA as a justification for pernicious discrimination. As a legal matter, I think this pretty well removes the impact from the human rights ordinances I know about. As a political matter, this has to sting the most ardent advocates of the local RFRA.
I’m a little confused…….this is part of a Conference Committee report, and I would presume that it’s a stand-alone from whatever vehicle bill that might have been “stripped out” (???) It will still have to pass both houses (3rd reading only?).
There was something about elections being gutted. If the conferees agree, then each chamber will give it an up or down vote.
Thanks, Doug. So procedurally there is no provision of any offered amendments. It will be interesting to see the vote…….one would think the Dems would have to join in the approval…….wonder who in the GOP will vote against.
I was never entirely clear on the conference committee procedures. I don’t know whether there is anything formal. I believe the speaker and president can appoint whoever they want to the conference. Traditionally, this involves minority members, but if they won’t agree, then I think the speaker and president pro tem can just appoint two members of their own caucus. The conferees can propose whatever amendments they want to each other. It has to be signed by the conferees and the same language has to be passed in each chamber.
Joint Rule 7 seems to address conference committees. House Rule 157 has the House’s internal rules on conference committees. Senate Rules 82-86 has the Senate’s internal rules.
Traditionally, regarding the appointment of conferees, no matter the makeup of the chambers, it is usually one senator from each party and one representative from each party. So, four conferees, uh “two v. two” in terms of party. If a budget bill goes to conference, there may be more conferees in the initial appointment. If the even sides are unable to produce agreement, then the conference committee is dissolved and a new one appointed, as Doug says, this time reflecting the majorities of either chamber.
Conference committees have no limitation as to how a bill can be amended, so anything can happen. This is typically where the weaknesses of leadership become apparent.
It’s this process that probably led to Bob Garton’s defeat. Many felt the Republican-majority Senate gave away too much, and to be honest, it was the House, regardless of who was in control, that got the business done. That was true at least for the time that Garton led the Senate. I don’t recall any big items coming out of the Senate during that time, but to be fair, in terms of both the federal and our state constitution, budget bills are suppose to originate from the House. I think Doug’s experience just about picked up where mine left off so he might be able to shed some more light on this point.
I cringe whenever things went to conference…and the big bills almost always do. I cringe because it is this small, unaccountable and uncontrollable thing. This is where “backroom” deals are put together and constituencies served.
The conference committee report will then be voted on by both chambers. The report is the legislation amended as the committee saw fit. If it is a large bill (budget), there is no time to find all the assorted goodies. In any case, a conference committee report cannot be amended on the floor of either chamber. If the report passes both chambers, it heads to the Governor.
On the provider vs non-provider issue I take it to mean the following.
My church has a well known and popular sanctuary for weddings. We do not charge members to be married there. We do charge non-members to be married there. Since that is taxable income, we could not refuse someone access to the sanctuary for their wedding.
Another thing to look at is our church owns 2 parsonages to house clergy. We currently have only one pastor so we rent the second parsonage and again generate taxable income. We could not bar anyone from renting the house for the reasons outlined in the “fix”.
Of course, I am no legal scholar.
Does your church pay federal income tax?
It sounds like you’re seeing applicability but I don’t see how under Sec 7.5 (1) your church would be included … unless they are a for-profit church. (Which, apparently, is a thing.)
I agree with those who say this isn’t a fix. The “fix” is to vote out anyone who gives Eric Miller, Micah Clark, and Curt Smith even one second of their time.
I sure am hoping that this causes a big schism in the party between business and religious interests… because the two are becoming more incompatible with the day.
Paddy, I’m not sure where you’re coming up with those legal conclusions. The RFRA and the “fix” is irrelevant. The only thing that matters is whether there is an anti-discrimination law that applies. As far as sexual orientation, there is no statewide ordinance banning discrimination, though some cities have such an ordinance.
Doug, IN’s RFRA never had any impact on local human rights ordinances. As long as those HROs had a compelling interest, they would pass legally muster if there was an RFRA challenge and the litigant first proved that it substantially burden his or her religious beliefs. In every case, courts have found that there is a compelling interest for anti-discrimination laws.
A more interesting situation might happen in Arkansas where the Governor sent the RFRA back but said he’d support a duplicate of the national RFRA that passed Congress nearly unanimously in 1993. There the so-called differences go out the window. I guarantee you it still would face the same firestorm as Indiana’s though as the left is much more hostile to religious freedom than it was 22 years ago.
It was never the “compelling interest” aspect I was worried about. It was the “least restrictive means” element that seemed wide open for a court’s interpretation.
Probably because “religious freedom” has been used much more in recent years as rhetorical short hand for discriminating against gays. That rhetorical short hand wasn’t necessary 22 years ago because you could just be open about discriminating about gays back then. Society has changed a lot in that respect, so now you hear a lot about “religious freedom.”
I believe in religious freedom, but I also believe that this state must finally pass civil rights protections as outlined in the Indianapolis Code for sexual orientation and gender identity. While I am not versed in the law, I have had extensive practical experience with the Lafayette HRO. I do not agree with Paul, of course, I don’t have his education. But I do know that the moral force of the community standards set by the decades long battles to form, enlarge and codify the HROs across the state set a bar, and most people de facto BELIEVE and ACT as if they have more force of law than they actually do. That dirty little secret is now out.
The FIX solves the issue for today – sing Kumbaya and let’s get on with it. The fight to add SO & GI in the state code will be hard and uphill. But nothing has ever come easily.
I hope and pray Indiana can earn our reputation for Hospitality back – even if it takes a few dozen Mrs. Wicks sugar cream pies.
I’ve been surprised on how many people throughout this FRFA discussion have been willing to “let the courts” sort out the correct interpretation of the law. Seems like we’ve come to expect our LEGISLATORS (whose job is to write [supposedly good] laws?) to write sloppy laws and then rely on the courts to tell us what they really mean (allowing legislators plenty of political cover?).
It seems “the fix” exempts so many of the “charter” and “voucher” schools consuming more and more of our education tax dollars? It seems even with “the fix” the Catholic Church would have been protected in the recently litigated firing regarding her in vitro fertilization?
Some really terrific posts. Thanks. You folks are so smart.
As Paul K. Ogden posted.
“As far as sexual orientation, there is no statewide ordinance banning discrimination, though some cities have such an ordinance.”
It is long past time for a statewide ban on discrimination based on sexual orientation.
It’s actually quite draconian that we don’t have one now.
And we need one passed federally as well..
Ogden is right on that point. But his panglossian view that courts will always find that nondiscrimination against LGBT discrimination furthers a compelling interest is a thin reed to support the current language of RFRA. (Never mind that chance that there is a less restrictive alternative) I think that most Hoosiers would like to see the law amended and clarified. Additionally, and this is just partisan gloating, I am very happy about the heavy political price that Pence is paying. And I love watching the gyrations of major Republican candidate as they attempt to pander to the base while building enough cover to take this issue to the general electorate.
Jharp, we are smarter and better informed than we were because we read Doug’s stuff.
Just one little picky question…
The Conference Committee Report says:
“Delete everything after the enacting clause and insert the following:”
It does not say “Replace the enacting clause with…and insert…”
It seems to me, they just gutted IRFRA – by removing all of Sections 1-11 – and then replaced those 11 Sections with just two new Sections: Section 0.7 and Section 7.5.
Nope. The reason is that the reference — when they are talking about “deleting everything” is to SB 50 — which had some kind of election law language in it. So all of SB 50 is nuked. IC 34-13-9, which had already been enacted into as law, remains intact with its sections 1 through 11. But, now, by virtue of this new law (passed with SB 50 as its vehicle), that chapter now has additional sections 0.7 and 7.5.