The roots of the federal Religious Freedom Restoration Act (1993) were a surprisingly bipartisan effort to offer protection for Native American religious traditions in particular. The purpose of that act was to prevent government from burdening individuals ability to practice their religion even if that burden resulted from a generally applicable rule. It laid out exemptions to ensure that if indeed a burden was inevitable to guarantee a “compelling government issue” (generally core constitutional rights) then that burden was the least restrictive way to implement the required law. Indiana, Arkansas and other states that passed similar laws in recent weeks have in most cases expanded the law in legally significant ways.
One the most significant differences was in language that grants religious beliefs to private corporations and LLCs. This is a growing trend, as witnessed in the Hobby Lobby decision by the Supreme Court in 2014, which allowed the company to refuse coverage for contraception for its employees based on the religious beliefs of its owners. The growing legal propensity to grant rights traditionally reserved for individuals to corporations and private companies seems to be the culmination of neoliberal economic policies. Opponents of these policies are pushing back against these trends and their voices are gaining traction as the impact of decisions like Citizens United is being felt.
Sen. Chuck Schumer (D-NY) who introduced the federal RFRA bill with former Sen. Ted Kennedy (D-MA) in 1993 has spoken out against the Indiana law saying it does not resemble the “intent or application” of the federal RFRA. The portion of the bill that has gotten the most press is of course those businesses who object to being a part of same-sex marriages. The distinction here, as in the Hobby Lobby case, is in how the religious beliefs of some are imposed on others. The original law gave no power to individuals to refuse service to others who did not share their beliefs.
The Quixote Center joins other progressive faith based organizations in encouraging Indiana Governor Pence to reform the law to ensure it is not allowed to be used in an oppressive or discriminatory manner. Governor Hutchinson of Arkansas has refused to sign the bill he was scheduled to sign last week, encouraging legislators to frame the law closer to the federal version. We hope to see the same in Indiana.