Sorry to go all RFRA, all the time here. But I wanted to address a little bit further the issue of how the RFRA discussion came to be focused on gay rights. My sense of the actual text of the law is that it does not particularly target gay rights or, for the most part, let people infringe upon such rights based on religion. I can see it coming up in the context of a local human rights ordinance that protects against discrimination based on sexual orientation where the person doing the discriminating claims it’s compelled by their religion.

That said, the text of the law does not address gay rights directly and certainly similar legislation has been approved in places and by people one normally associate as being favorably inclined toward gay rights. So, why has the debate played out in Indiana the way it has?

My sense is that the social conservatives felt stung by their defeat in the marriage equality battles. They failed to get a marriage amendment to the Indiana constitution on the ballot and the federal courts have declared such measures to be contrary to the U.S. Constitution. That was when the Indiana RFRA push began. I think it was something that was substantively palatable to most of our lawmakers because it had been passed in many places and has been largely unobjectionable to most people. At the same time, it could be sold rhetorically by advocates of social conservatism as a victory against the LGBT menace threatening Christianity. Take, for example, Eric Miller of Advance America:

Indiana now becomes the 20th state with a Religious Freedom Restoration Act.

Eric Miller, the Founder and Executive Director of Advance America stated: “It is vitally important to protect religious freedom in Indiana. It’s the right thing to do. It was therefore important to pass Senate Bill 101 in 2015 in order to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs!”

Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection!

Here are just three examples where SB 101 will help:

Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!

A Christian business should not be punished for refusing to allow a man to use the women’s restroom!

A church should not be punished because they refuse to let the church be used for a homosexual wedding!

(Holy exclamation points, Batman!). Miller isn’t just some crank off the Internet. He was given a prominent spot at the private signing ceremony by Gov. Pence. He is one of the people this legislation was designed to appease.

So, legislators are in a bit of a bind. It’s all well and good for them to say that this legislation doesn’t hurt gay rights. There is a pretty good chance they’re mostly right. But that message isn’t going to carry the day unless and until they come out and directly admit to social conservatives, “we haven’t done anything to address your concerns about gay people.” Unless that message comes across clearly, the gay community and those who support them can be excused for taking people like Miller at their word that this legislation was intended to assist guys like him retain the ability to treat gay people like second class citizens. The ability of lawmakers to communicate that message is further complicated by the fact that they had an opportunity to amend the bill in a variety of ways that would have made explicit that it was not intended to facilitate discrimination. See, for example, Sen. Lanane’s proposed amendment:

(b) This chapter does not apply to:
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

That proposal was defeated in the Senate 10-40.

Whatever the legal effects, however, the rhetoric surrounding this legislation was never closely tethered to reality. Now that it’s law, getting the horse back in the barn by asking people to focus on what the law does in reality will be awfully tough.

By popular demand, I’m following up on SB 101, dubbed the “Religious Freedom Restoration Act.” I don’t know that I have a lot of value to add, but I’ll go ahead and supplement my earlier post with what I think might be relevant information.

What does it do?

The law subjects government action to “strict scrutiny” if the government “substantially burdens a person’s exercise of religion.” Strict scrutiny means that the burden is permitted only if the burden is the least restrictive means in furthering a compelling governmental interest. If the government imposes such a burden without satisfying the strict scrutiny review, the court can enter an order preventing, correcting, restraining or abating the government action, awarding compensatory damages, and awarding attorneys’ fees.

On the national level, the federal RFRA was a response in 1993 to the 1990 Supreme Court case of Employment Division v. Smith. Smith challenged a decision that his employment termination was for just cause (and therefore he was not entitled to unemployment benefits) where he failed a drug test after using peyote as part of a religious ritual. The court held that, even though the unemployment benefits arguably burdened his free exercise of religion, such a burden was permissible so long as the burden arose out of a neutral law of general applicability. The alternative, according to the decision would be “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Congress felt that this opinion interpreting the scope of the First Amendment’s free exercise clause was insufficiently solicitous of religion and, therefore, passed a federal law that provided for more expansive protections. However, the Court determined in 1997 in the case of City of Boerne v. Flores that RFRA was unconstitutional as applied to the states. Congress has some leeway to regulate the states, particularly arising out of the Fourteenth Amendment, but the court did not see this free exercise legislation as having a remedial purpose within the scope of section 5 of the Fourteenth Amendment.

The Volokh Conspiracy has a pretty good discussion.

Do I think it is a good law?

Personally, I don’t. Like I said earlier, the definitions are vague and I think it’s a solution looking for a problem. In particular, I think determining what constitutes a substantial burden to a person’s exercise of religion is very problematic. Additionally, I don’t believe there is cause to elevate the right to free exercise of religion above other rights.

Perhaps I’m wrong, but I don’t think there is a lot of meaningful standards that allow a court or litigants to challenge a plaintiff’s assertion that he, she, or it really objects on the basis of religion and that the religious belief is sincerely held. If a person largely ignores their religion and disregards the less convenient mandates of the stated religion until it’s time to raise this legislation as a shield or a sword, it’s still going to be problematic to argue that their religious profession is pretextual. Beyond that, showing that any governmental action is the “least restrictive means” is a very high hurdle. Although, I confess that my knowledge of “strict scrutiny” jurisprudence is mainly in the context of race. In that context, it has been described as “strict in theory, fatal in fact.” In other words, once the strict scrutiny review is selected, the governmental action always failed. However, in that Volokh Conspiracy link above, “strict scrutiny” in the religious burden context was described as “strict in theory, feeble in fact.” But that was from 1960s era judicial review. Right now, I guess knowing how strict scrutiny would play out in practice is a work in progress.

If it’s o.k. for lots of other states, isn’t it o.k. for Indiana?

I think there is some variant of state level RFRA in 20 other states. So far as I know, this has not caused great injustice. As a legal matter, this might be a tempest in a teapot. If an inmate can claim a religious reason and be entitled to a short beard instead of following the jail’s rules on being clean shaven, is that a big deal? So, the law’s proponents might be correct that the practical effects won’t be, by and large, that significant. (Which raises the question – what real need did we have for the legislation in the first place?)

But, as a political matter, context matters. RFRA started getting pushed here, so far as I can tell, in response to decisions having to do with gay rights and reproductive rights. Legally, it might permit religious rights to trump the civil rights of gay people and the reproductive rights of women. Politically, it sends a message of hostility to those who don’t share politically conservative religious sensibilities. And, at least in the short term, Indiana is going to experience some backlash due to that political message. I think we saw some evidence of that backlash when Gov. Pence felt obliged to sign the law somewhat furtively behind closed doors.

Given that I’m not religious, that I do support equal rights for gay people, that I do support reproductive rights for women, and that I do not support potentially arbitrary exceptions to laws (particularly those of local government) of general applicability, it’s not surprising that I don’t support this legislation.

Update: I have seen a lot of discussion about whether the intent of this law is discriminatory, particularly with respect to gay people. The text and history elsewhere, as described above, lends support to the proposition that it was not. The rhetoric accompanying the recent push lends support to the proposition that there was discriminatory intent, at least in some circles. Governor Pence said, “this bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it.” But the fact remains that supporters of the bill voted against amendments that would have provided clarity on the issue of discrimination. For example, Sen. Lanane’s proposed amendment was defeated 10-40. It would have added language that said the following:

(b) This chapter does not apply to:
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.”

The Indiana Law Blog has been covering an ongoing effort to obtain records from the General Assembly through the Access to Public Records Act (APRA). The initial request was denied via the House Republican Caucus attorney on the general grounds that APRA does not apply to the Indiana General Assembly. They created APRA and can exclude themselves from APRA, the theory goes.

The public access counselor found that the General Assembly did not, in fact, exclude itself from APRA but found that the initial public records request was not improperly denied because the request was not made with the reasonable particularity required of any public records request by APRA. So, the requester – individuals from something called the Energy and Policy Institute – increased the level of specificity. (As an aside, I think they still went too broad. Their request reads like a discovery request under the Trial Rules, filled with “including but not limited to” type language. My strategy would be to isolate the issue of whether APRA applied to the General Assembly by being extremely particular – “correspondence, including email, between [specific sender] and [specific recipient] between date x and date y. Sure you’ll miss something, but you can circle back with a broader request if and when a court determines APRA does apply to the General Assembly).

But I digress. The request was for, essentially, correspondence from Sept. 1, 2014 to the present between Rep. Eric Koch and various players in the energy policy world (e.g. Duke Energy, NIPSCO, Vectren, etc.). The response acknowledged the Public Access Counselor’s opinion that APRA applied to the General Assembly but disagreed.

As I explained to the Public Access Counselor, the Access to Public Records Act does not apply to the Indiana House of Representatives (“House”) under applicable constitutional provisions. Pursuant to Article 4, Section 10 of the Indiana Constitution, “each House shall choose its own officers… determine the rules of its proceeding, and sit upon its own adjournment.” In determining the rules of its proceeding, the House has a long history of treating all correspondence as confidential. This encourages constituents-and anyone else-to communicate all necessary information to their-or any– legislator without fearing that the information (which is often personal and private in nature) could be released to an outside party.

The bit about encouraging open and frank information to public officials is not an illegitimate policy concern, but it is in no way exclusive to the General Assembly. In other words, it strikes me as a bit of a pretext. If the General Assembly decided that the value of public records outweighed the value of confidential communications to every other part of state government, why would it not make the same policy decision for itself. (Other than “it’s good to be the king”?)

The letter goes on to cite work product exemptions found in IC 5-14-3. My familiarity with the work product doctrine has to do with the context of litigation. I’m not sure exactly how it would play out in the context of the legislative process. It shields documents or materials collected or prepared in anticipation of litigation. That “in anticipation of litigation” is a significant factor. An insurance company that gathers inconvenient facts in the ordinary course of business can’t generally shield that material because it’s subsequently in litigation. The same material may be shielded if it’s gathered specifically in anticipation of litigation. It’s purpose is to shield the mental processes and strategies of attorneys and litigants as to the process of litigation. So, I’m not convinced that emails from, say, a power company to a state representative urging the passage or non-passage of public laws constitutes “work product.” And, if it does, that suggests a more intimate relationship between the lawmaker and the power company than your average, arm’s length citizen-lawmaker relationship.

The other day, I proposed a compromise to my wife.* (*Fiction: may not have happened). “Oh?” she says.

“I’ll unload the dishwasher 50% of the time,” I offer magnanimously.

“You should be doing that anyway,” she observes.

“And, in return,” I continue, unfazed, “every day you’ll drive to Delphi and back.”

“Why would you want me to drive to Delphi and back?” she asks, perplexed.

“Compromise!” says I.

In unrelated news, the Sunday liquor sales bill died without passing the House. Rep. Dermody declined to call down HB 1624. This was the bill that would have allowed Sunday alcohol sales. However, the package liquor store interests were successful in inserting a poison pill amendment that invented (for stores other than package liquor stores) a concept known as “self-service displays” which simply means “liquor on a shelf a customer can get to without going through a sales clerk.”

For no good reason, regular stores would have to pull the liquor from shelves where they are now, put them behind a counter, inconvenience customers, and add extra duties for sales clerks. I’m not sure advocates pretended to have any noble policy goals for this measure — if they did, I expect it was “for the children” or somesuch. But, it was pretty transparently a power play designed to stall Sunday sales against public pressure and throw in a fig leaf of “we tried and negotiated in good faith – really we did – but the big box stores wouldn’t compromise.”

See, for example, this disingenuous column from a lobbyist for the package liquor industry: “Serving and protecting consumers should have been at the center of this debate.” Sure. Protecting and serving are what this debate was about, but it’s the package liquor store that is being protected.

Give Sunday sales an up or down vote. If lawmakers actually think consumers need additional protections from the scourge of demon alcohol, use a separate bill to do that. If lawmakers honestly think Hoosiers need to be protected, shouldn’t they be doing that anyway? Are they needlessly endangering Hoosiers by permitting the ongoing threat of “self-service displays?” Seems pretty reckless of them. Unless, of course, that rationale was just a pretext.