theatlantic | There’s a factual dispute about the new Indiana law. It is
called a “Religious Freedom Restoration Act,” like the federal Religious
Freedom Restoration Act, passed in 1993.* Thus a number of its defenders have claimed it is really the same law. Here, for example, is the Weekly Standard’s John McCormack:
“Is there any difference between Indiana's law and the federal law?
Nothing significant.” I am not sure what McCormack was thinking; but
even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures.
The problem with this statement is that, well, it’s false. That
becomes clear when you read and compare those tedious state statutes.
If you do that, you will find that the Indiana statute has two features
the federal RFRA—and most state RFRAs—do not. First, the Indiana law
explicitly allows any for-profit business to assert a right to “the free
exercise of religion.” The federal RFRA doesn’t contain such language,
and neither does any of the state RFRAs except South Carolina’s; in
fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.
The new Indiana statute also contains this odd language: “A
person whose exercise of religion has been substantially burdened, or is
likely to be substantially burdened, by a violation of this chapter may
assert the violation or impending violation as a claim or defense in a
judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.
What these words mean is, first, that the Indiana statute
explicitly recognizes that a for-profit corporation has “free exercise”
rights matching those of individuals or churches. A lot of legal
thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in
which the Court’s five conservatives interpreted the federal RFRA to
give some corporate employers a religious veto over their employees’
statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a business’s “free
exercise” right a defense against a private lawsuit by another person,
rather than simply against actions brought by government. Why does this
matter? Well, there’s a lot of evidence that the new wave of “religious
freedom” legislation was impelled, at least in part, by a panic over a
New Mexico state-court decision, Elane Photography v. Willock. In
that case, a same-sex couple sued a professional photography studio
that refused to photograph the couple’s wedding. New Mexico law bars
discrimination in “public accommodations” on the basis of sexual
orientation. The studio said that New Mexico’s RFRA nonetheless barred
the suit; but the state’s Supreme Court held that the RFRA did not apply
“because the government is not a party.”
Remarkably enough, soon after, language found its way into the
Indiana statute to make sure that no Indiana court could ever make a
similar decision.
