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Indiana’s RFRA statute: a plea for civil discourse

On one level, I admire the public furor now surrounding Indiana’s Religious Freedom Restoration Act (RFRA). In an important sense, this discussion reflects the Founder’s vision of a republican citizenry robustly debating the meaning of important values like nondiscrimination and religious freedom. On the other hand, this public controversy has, at times, regrettably reflected failure on both sides to respect their fellow citizens and confront the merits of the issue in civil fashion.

Opponents of Indiana’s RFRA find themselves explaining why the Hoosier State’s new law differs from the federal RFRA signed by President Bill Clinton as well as many state RFRAs. All of these statutes forbid the government from imposing a substantial burden on a person’s right to exercise religion unless it has a compelling interest and the law in question is the least restrictive means of advancing that interest. These ideas embody the jurisprudence of such civil liberties giants as Justices William Brennan, Jr. and Thurgood Marshall who promulgated these concepts by dissenting in Employment Division, Department of Human Resources v. Smith.

Among the most strident critics of the Indiana law is Governor Dan Malloy of Connecticut, chairman of the Democratic Governors Association. Governor Malloy denounced Indiana’s governor, Mike Pence, as a “bigot” for signing the Indiana statute. He also issued an executive order forbidding state-funded travel to Indiana because of the state’s new RFRA law. Malloy tweeted that his opposition to the Indiana act sent “a message that discrimination won’t be tolerated.”

Unfortunately, Malloy has encountered one major problem: Connecticut has a substantively identical statute known as the Connecticut Act Concerning Religious Freedom. Indeed, Connecticut was one of the first states to adopt a state RFRA in 1993. Even as Malloy denounces Indiana’s substantively identical law as embodying bigotry, he has not called for the repeal of his own state’s RFRA. Instead, he has argued that Indiana’s law differs from Connecticut’s because the former protects the religious practices of corporations, whereas other state RFRA laws do not.

This argument is wrong. In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that the federal RFRA protects closely-held corporations. This conclusion is compelling as a matter of statutory terminology because the federal RFRA applies to “persons,” a term that is conventionally understood in legal discourse to include corporations. Conversely, when laws are meant to apply only to “individuals,” that is the word used. Therefore, the Hobby Lobby interpretation suggests that state RFRAs apply not only to “individuals” but to corporations that legally qualify as “persons.”

Balancing equally compelling values—like religious freedom and nondiscrimination—often requires compromise, though such compromise does not satisfy the hardcore advocates on either side of the spectrum.

This interpretation also makes sense as a matter of policy. The Congress and state legislatures that adopted RFRA statutes wanted to protect religious practices; a kosher butcher, for instance, should not lose his rights under RFRA and be forced to abandon Jewish slaughtering practices. In explicitly including corporations in its RFRA, the Indiana legislature simply codified the conventional legal understanding of the term “persons” as including corporations and similar legal entities.

Some claim Connecticut’s RFRA law differs from Indiana’s because it has protected its citizens from gender identity discrimination since 2013. As a Connecticut resident, I supported the adoption of this legislation. However, for two decades before this clause was introduced, Connecticut’s RFRA did not extend legal protection to members of the LGBT community. During these two decades, no one—including Dan Malloy—suggested that the Connecticut RFRA was an act of bigotry.

Strident rhetoric from both sides obscures the important point we should be confronting: Balancing equally compelling values—like religious freedom and nondiscrimination—often requires compromise, though such compromise does not satisfy the hardcore advocates on either side of the spectrum.

Consider one of the most frequently cited examples, a commercial photographer whose Christian beliefs sincerely lead him to favor only Christian marriage. Suppose that a couple walks into the photographer’s studio to buy film for their wedding. Imagine that the photographer rejects the validity of this couple’s wedding because they are a same-sex couple. In this example, a society that believes in the equality of its citizens will require this photographer to sell a commodity like film to any customer willing to pay the price.

On the other hand, the photographer should not be forced to photograph a ceremony against his religious beliefs. Unlike simply selling a roll of film, the photographer would be required to perform personal services by participating in an event that violates his religion. His right to refuse clients should remain valid as the photographer has engaged in the commercially and legally reasonable course of incorporating his business.

Ironically, the strongest argument against the Indiana law is one which, to the best of my knowledge, no opponent of that law has advanced: that given the legislative history of the statute, the Indiana courts will construe it, not in the tradition of Brennan and Marshall, but to limit gay rights. However, it is equally plausible that Indiana’s courts, looking at the history of federal and state RFRA laws, will engage in a more careful balancing of interests, especially when a society like ours holds values that must be reconciled in a sensitive manner.

There are thoughtful opponents of the Indiana law such as Professor Garrett Epps who, in The Atlantic, argues that RFRA doesn’t apply to corporations. My Cardozo colleague, Marci Hamilton, makes the equally thoughtful argument that there should be no RFRA statutes at all, since detailed decisions accommodating religious freedom should be made by democratically-elected legislatures. Professor Daniel O. Conkle balances his thoughtful support of the Indiana law while supporting legal protections for gay rights. In contrast to the above arguments, I think that courts, with all of their evident limitations, are often better for making fact-specific decisions, such as drawing a legal distinction between selling a commodity like film and personally attending a wedding.

I respect these commentators even if I disagree with some of them and look forward to further discussion. To the extent that law professors have provided civil voices in this debate, I am proud to be one. At the end of the day, the issues raised by this controversy are too important for strident voices on either side to dominate the debate.

Image Credit: “RFRA Protests in Indianapolis on March 28, 2015” by Justin Eagan. CC by SA 3.0 via Wikimedia Commons.

Recent Comments

  1. John S

    On the subject of respecting other commenters, one must ask why you address some of your colleagues–the male ones–as “professor,” but fail to accord professor Hamilton the same honor.

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