Indiana has caught a lot of well-deserved flak for their new religious-freedom law, and today the governor promised to clarify it to make clear that it won’t allow discrimination. People are, understandably, asking why not just scrap the law? And why would anyone think a religious-freedom law might be an OK idea?
If you read Indiana’s law, it’s actually a pretty good law — one of a class of Religious Freedom Restoration Acts (RFRA) that the federal government and nineteen other states also have. The ACLU supports RFRA laws as helping ensure civic freedom. These have been authored with no intent of allowing discrimination, and to my knowledge have never been successfully used as such (although there was an attempt in New Mexico, which failed in court). So let’s take a look under the hood and see what these RFRA laws really say, and what makes Indiana’s law different.¹
The gist of an RFRA law is really simple: Government isn’t allowed to substantially burden someone’s free exercise of religion, unless doing so furthers a legitimate government interest. In the 1960’s, the Supreme Court said basically that (the Wikipedia article gives full details). However, there were some laws that weren’t specifically targeting any particular religions, but that people could still run afoul of in their religious practices. The ones that set new court precedent, around 1990, were both involving Native American religions — one where the government wanted to build a road through a sacred site, and one where Native Americans were fired and denied unemployment after testing positive for peyote use.² In the latter Smith decision, the court massively relaxed the standard for determining when it was OK for a “generally applicable” law to prevent/penalize religious practices and expressions.
In 1993, Congress passed the RFRA to restore the bar of strict scrutiny for when government can infringe on religious freedoms. It passed unanimously in the House, and almost so in the Senate, and it’s not a conservative right-wing nut-job like we’re making the Indiana law out to be. There’s nothing in there about people being able to use religion to ignore laws they don’t like. If a government action will substantially burden someone’s exercise of religion, it must pass two tests: 1) further a legitimate government interest, and 2) be the least burdensome means of doing so. If a law conflicts with someone’s religious freedoms, the law needs to withstand some extra scrutiny. Most laws will withstand that — especially laws like nondiscrimination ones. Or to use another example, laws against murder (the KKK lynchings were often couched in religious language).
The federal RFRA was the basis for the infamous Hobby Lobby case where the court let closely-held corporations have religious beliefs — and then used the RFRA to try to figure out how those corporations should deal with Obamacare regulations for post-fertilization contraceptives. If you read Alito’s majority opinion and Ginsberg’s dissent, you’ll see that these laws are severely in need of clarification. RFRA doesn’t speak to the core question of whether corporations have religion, but even on the application of RFRA the justices are finding a lot of room to disagree over how far the government needs to go to find/create/pay for a “least burdensome” alternative.
One other case needs to be brought up: Elane Photography v. Vanessa Willock, which came before the New Mexico Supreme Court in 2013. Elane Photography refused to photograph a lesbian couple’s commitment ceremony, which violates NM’s nondiscrimination law. The photographer’s case presented a few arguments, including one that the state’s RFRA protected her based on religious beliefs. The Court dismissed this claim on almost a technicality; the law is about government actions, and getting relief from government agencies, and is not applicable to an issue between two private parties (the photographer and the couple.
Now we can come back to Indiana, and look at what makes this RFRA law different from the others. One is that it explicitly sets out that the law applies to corporate persons, not just real persons, though this is pretty much redundant (welcome to the brave new Citizens United world…..). The second, key, difference is that it includes a clause explicitly applying the law to matters between private parties, too. In other words, they’re closing the New Mexico loophole. (Arizona’s infamous S.B. 1062 would likewise have amended the state RFRA³ to include such a clause.) I still don’t think this would actually exempt anyone from nondiscrimination laws — the legitimate-interest test still protects most laws — but a court would have to tackle the question head-on. More importantly, however, the intent of this clause is clearly to use the RFRA to attack nondiscrimination laws.
The reason the previous RFRAs don’t include such a clause is because it’s not needed if you’re really out to protect people from government. It’s only applicable if people want to try using religion as an excuse to pick and choose which laws they want to follow. The only way the RFRA can be used to break nondiscrimination laws is if it can break any law. Theft? Your house is my promised land, so your stuff is mine. Speeding ticket? I’m late to coven. Basically, anything the FSM noodles you into doing can supersede the merely human laws, right? Fortunately — no. These are no more ludicrous or disruptive than allowing religiously motivated discrimination. They’re all attempting to break laws of compelling government interest, and therefore likely to fail in court.
Indiana clearly passed their religious-freedom law with the intent of being a right-to-discriminate law. Even though I expect that such a use would fail in court, it would still lead to an awful lot of hurt until a test case makes its way through. However, let’s not throw out the baby with the bathwater here and demonize RFRA laws. Overall, RFRAs are good laws, with good purposes, even if people are trying to put them to bad uses.
 As far as I can tell, the Church of Cannabis — organizing to create religious exemption from marijuana laws — is entirely in line with this case, and thus with the founding spirit of the RFRA. The government isn’t allowed to say that some religions, beliefs, or practices are “real” or “legitimate” and dismiss others. Any RFRA is likely to cover this, not just Indiana’s, so I’m surprised nobody has done this already!
 Arizona’s RFRA law already does have some ooky parts of note — there’s a whole section protecting doctors and other professionals who refuse services, etc. with religious excuses. I’ve read only a few other states’ laws, plus the federal one, and not found anything similar in them…..but there may be more lurking out there.