Indiana religious freedom law too broad, Stanford scholar says

By Clifton B. Parker

Indiana Gov. Mike Pence called for changes to the state's Religious Freedom Restoration Act to ensure it does not discriminate against gay and lesbian customers, employees and tenants of Indiana businesses. (Photo: Mark Taylor/Creative Commons)

The religious freedom law that Indiana passed last week goes beyond earlier federal legislation and court decisions in its potential for discrimination, a Stanford scholar says.

The Indiana Religious Freedom Restoration Act would potentially allow business owners to refuse to serve customers on the grounds that serving them may impinge on the owners' religious freedom. Opponents say it could allow businesses to discriminate against lesbian, gay, bisexual and transgender people.

Stanford law Professor Bernadette Meyler says that the Indiana law appears aimed at allowing companies to discriminate against same-sex couples or gay people. Meyler, the Deane F. Johnson Faculty Scholar and an expert on constitutional and religious law, said that Indiana's historical context looms large in the issue, which has attracted widespread coverage this past week as the Indiana legislature moved on Thursday to modify the bill.

Stanford News Service interviewed Meyler on the topic.

What makes Indiana's religious freedom law different?

The version of a Religious Freedom Restoration Act that Indiana passed is significantly broader than the federal religious freedom law passed in 1993 in two respects. First, it explicitly asserts the religious liberty rights of corporations, going beyond even the Supreme Court's decision in the 2014 Burwell v. Hobby Lobby case, which protected the religious liberty claims of only closely-held corporations under the federal law. Second, it allows for raising a claim even in suits between private parties.

These two alterations significantly expand the scope of entities that may bring such claims and contexts in which they may bring them. In addition, the historical context of the legislation strongly suggests that these modifications were aimed at allowing companies to discriminate against same-sex couples or LGBT individuals.

The Indiana Religious Freedom Restoration Act follows on the heels of a 2014 Seventh Circuit decision invalidating Indiana's ban on same-sex marriage and a 2013 New Mexico case, Elane Photography v. Willock, in which a less expansive bill was held not to protect a photo company's right to refuse to photograph a same-sex commitment ceremony because the state was not a party.

Therefore, it is the sequence of events leading up to passage of the Indiana religious freedom law and the ways in which the language of the statute appears to respond to those events that I find most troubling.

What changed since 1993 and the federal law?

I see the context of the 1993 federal Religious Freedom Restoration Act as significantly different from that of the recent Indiana one. The 1993 law was passed in response to the Supreme Court's decision in Employment Division v. Smith (1990) that neutral laws of general applicability would be considered per se valid even if they burdened religious exercise, arguably a different standard than the court had previously endorsed. The federal law derived from the sense that this standard was insufficiently protective of the free exercise of religion.

At that point, the main concern was individuals' ability to engage in religious practices when these did not otherwise constitute a threat to the state. Enacted after Hobby Lobby – and including such explicit protections for corporations' putative exercise of religious liberty, and in the context of state resistance against anti-discrimination claims by gay and lesbian couples – the Indiana statute instead may open the door for some companies that can claim some religious basis to discriminate on the basis of gender, sexual orientation or other protected classes.

What aspects of the law do you see as its weakest? If you were representing a plaintiff, what areas of it would you challenge?

Given the context of the law, I would want to see if I could uncover any more information about the reasons it was passed. Depending on what I found, I might attempt to challenge the law as violating the Equal Protection Clause of the 14th Amendment by expressing animus against LGBT individuals and same-sex partners. The difficulty with this challenge would be that the Supreme Court case most on point, Romer v. Evans (1996), dealt with a Colorado constitutional amendment that explicitly prohibited state protection of LGBT individuals from discrimination.

Here there is no explicit discrimination within the text of the statute. So, there would have to be some smoking guns in the history leading up to enactment for a court to find that the Indiana statute violated equal protection.

Any other issues you'd like to address?

There are two additional points that interest me about the controversy surrounding the Indiana Religious Freedom Restoration Act. In a sense, this law demonstrates one of the problems with the assertion of "rights as trumps." Although I would like to see a more thorough protection of rights than the Supreme Court demonstrated in Employment Division v. Smith, I am disturbed when that articulation of rights, as in the Indiana law, winds up trumping other people's interests in equality.

This suggests to me that some of the 18th-century state constitutions got it right in protecting free exercise but limiting that protection to the extent that it interfered with the "rights of others."

Finally, if this brouhaha unearths any legislative intent to authorize discrimination against LGBT individuals or same-sex couples, that evidence might be sufficient to support congressional legislation passed under the enforcement provision of the 14th Amendment, which protects sexual orientation against state discrimination. That would be a particularly ironic consequence of these state legislative efforts.

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