October 19, 2019

Loopholes and Exceptions

The bubbling controversy about Indiana’s newly adopted “Religious Freedom Restoration Act” has demonstrated once again the ease with which misinformation gets disseminated and then accepted as given wisdom.

In the case of the Indiana law there is the oft repeated assertion (including by Governor Mike Pence this week) that the law has been misrepresented and that “it simply mirrors federal law that President Bill Clinton signed in 1993” (as Pence wrote in “>Sunday after being asked that specific question by George Stephanopoulos.

The fact is that the “>Religious Freedom Restoration Act of the Clinton era as anyone who reads both statutes can discern for themselves. It isinstead, by its structure, a prescription for litigation and inter-faith rancor. The statute additionally, is a potential vehicle for odd ball religions to claim exemptions from obeying laws of general application due to their “genuinely held religious beliefs” which courts are loathe to question.

After several days, “>The Atlantic  previously had) that there are two critical differences between the Indiana and federal statutes, differences that mold the Indiana law to be a potential vehicle for discrimination.

The federal law was written in response to a Supreme Court decision and sought to protect religious folks who argued that laws that appear neutral on their face (e.g. zoning, licensing, etc.) could have unintended impacts on the free exercise of their religion and ought to be subject to special scrutiny. The result of the federal law is that once individuals assert a claim to special protection then the government must prove that there is a compelling state interest in doing what it is doing (i.e. it really needs to be regulating the subject) and that the method being used is the “least restrictive means of furthering  that interest.”

So if I run a church and would like to expand the sanctuary and there is a zoning ordinance preventing me from adding a set amount of square footage, I could appeal the denial of my building permit, invoke the federal act and thus shift the burden to the state to prove that there are both a compelling reason for the zoning requirement and that there is a no less onerous means of achieving the same end (e.g. residential looking buildings) than forbidding the expansion.

The Indiana version has two substantive tweaks on the federal legislation; it allows business entities (i.e. partnerships, limited liability companies, corporations,  joint-stock companies, unincorporated associations, or other entities) to sue and be sued as a “person” under the statute. The federal law speaks only to a “person’s exercise of religion”—it does not view fictional entities as having “free exercise” rights to protect. Indiana presumes that corporations, etc. have a right to freely exercise religious rights (whatever they may be?) unencumbered by laws that apply to everyone else.

The Indiana law also differs from the federal law in allowing parties to sue or be sued “regardless of whether the state or other governmental entity is a party to the proceeding.”  So a federal statute that is explicitly directed at “government…substantially burdening a person’s exercise of religion” has morphed into a state license for any one or thing to sue to prevent the impact of a government policy that an aggrieved party views as “burdening” their religious rights—even if the government isn’t involved.

While the authors of the bill likely were likely thinking about a scenario involving gay marriage and the florist who chooses not to provide arrangements for a ceremony he finds immoral, one doesn’t have to be a jurisprudential scholar to imagine that Moonies or Scientologists or (probably much to the chagrin of the bill’s sponsors) religious Muslims adhering to Sharia law could claim exemption from numerous seemingly neutral statutes that “burden” their genuine beliefs in how to conduct their lives.

If the exception Indiana is carving out works for fundamentalist Christians or Jews who find same sex marriage morally abhorrent, it also works for Muslims who may find serving non-believers or marriage without parental consent or countless other commonplaces in twenty first century America unacceptable and an infringement on their genuinely held beliefs. Indiana has set the table for exceptions to be for virtually anyone who claims a religious belief and can demonstrate a “substantial burden” on it.

Those issues exist under the federal statute but only insofar as governmental action is concerned. Under the Indiana statute the issues are amplified because it “protects” religious “beliefs” from being impinged on by private action and involving fictional “persons.”

Hopefully, the governor’s pledge to “fix” the statute is a sincere one and its several profound flaws will be remedied.