Constitution Daily

Smart conversation from the National Constitution Center

Explaining the Indiana RFRA controversy in five minutes

April 1, 2015 by Scott Bomboy


The gay-discrimination debate in Indiana over a law that guarantees religious rights seems complicated, but the issues boil down to a few simple concepts.

Mike Pence

Last week, Indiana’s legislature and Governor Mike Pence approved a law called Senate Bill 101, or the Indiana Religious Freedom Restoration Act (or RFRA). About 20 states have passed their own RFRA laws since 1997, after the United States Supreme Court ruled that a federal RFRA law from 1993 didn’t apply to individual states.

The core reasoning behind the RFRA law is that the government has to show a very strong state concern if a law forces someone to do something against their religious beliefs.

This concept goes back to a Supreme Court decision, Sherbert v. Verner, from 1963. The Sherbert test said that if a person claimed a sincere religious belief, and a government action placed a substantial burden on that belief, the government needed to prove a compelling state interest, and that it pursued that action in the least burdensome way.

Indiana’s law contains two provisions that are being debated nationally. One provision allows corporations as well as individuals to file lawsuits in cases where they feel their religious rights are being violated. The second provision expressly allows “persons” (individual or corporate) to sue each other over these violations, without the government being part of the lawsuit.

The opponents of the Indiana RFRA say these two provisions would promote discrimination against the LGBT community by making it easier for religious objectors to win court cases when discrimination was alleged, by shifting the legal burden to accusers who may not have a local or state government supporting their case. (In these cases, the plaintiffs might not live in an area where anti-LGTB discrimination laws are on the books.)

Supporters of the Indiana RFRA said the law is practically identical to RFRA laws championed by President Bill Clinton in 1993, by then-State Senator Barack Obama, and to similar laws passed by 19 other states, as well as the federal RFRA law that still remains in effect in federal jurisdictions. They also said there is no record of a successful court case where RFRA-based discrimination was upheld against gays.

Still, some local and national business organizations stated concerns that the Indiana RFRA law could lead to a situation where court rulings upheld discrimination against gays and they threatened to, or actually withdrew, their business activities from the state. In turn, Indiana politicians now say they will alter the law to make it clear Indiana’s RFRA doesn’t endorse discrimination.

How the Indiana RFRA law could make such guarantees without making the LGBT community a “protected class” under the state law remains to be seen. Members of such classes in Indiana are protected against discrimination and they include race, color, national origin and religion as factors.

Here is a short-timeline of how this debate progressed:

In 1990, the Supreme Court said in Employment Division v. Smith that two American Indians who worked as drug rehab counselors could be fired from their jobs. The counselors ingested peyote as part of religious ceremonies conducted by the Native American Church. Justice Antonin Scalia said that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

A near unanimous Congress passed the federal RFRA in 1993 and President Bill Clinton signed the law. The federal RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

In 1997, the Supreme Court said in City of Boerne v. Flores that Congress had exceeded its constitutional powers by enacting the federal RFRA, because Congress couldn’t determine the way in which states could enforce the law. So the federal RFRA no longer applied to the states.

Between 1998 and 2014, 19 states passed their own RFRA laws. Last year, Arizona sought to pass a RFRA law called SB 1062 that included provisions about corporate personhood and private lawsuits that eventually were included in Indiana’s RFRA law.

Arizona lawmakers were concerned about a case in New Mexico called Elane Photography v. Willock. The New Mexico Supreme Court in 2013 decided that a photographer who refused to document a same-sex couple’s commitment ceremony had violated the state’s public accommodations laws and that New Mexico’s RFRA didn’t allow for lawsuits between two private parties. An appeal wasn’t accepted by the United States Supreme Court.

Arizona did pass the law, but outgoing Governor Jan Brewer vetoed SB 1062 after local and national business leaders voiced concerns.

Now in Indiana, Governor Mike Pence faces a similar business backlash, while legal scholars are still debating the merits of Indiana’s law.

One prominent question is about private party lawsuits. Some experts have argued that the clear intent of the federal RFRA law, which is the model for most state RFRA laws, is to allow private parties to sue each other over discrimination and legal claims. However, the language in the federal RFRA law doesn’t explicitly say that.

The lower federal circuit courts are apparently split on this issue. However, the lower-court splits, which are usually a precursor to the Supreme Court taking a case, didn’t seem compelling enough to at least four Supreme Court justices when they denied hearing the New Mexico photography case.

For now, even if Indiana changes its law, the controversy may not go away. In Arkansas, a bill that is similar to Governor Asa Hutchinson for approval and he has said he will sign it. North Carolina is considering similar legislation.

Scott Bomboy is the editor in chief of the National Constitution Center.

Recent Constitution Daily Stories

John Tyler: America’s most unusual President?

Supreme Court turns down American flag ban case

Podcast: The Confederate license plate debate

Supreme Court to reexamine patent licensing in Spider-Man toy case

Sign up for our email newsletter