Indiana RFRA:  What happened, and why (and how) it matters

by Stanley Carlson-Thies and Chelsea Langston

On April 2, 2015, Indiana Governor Mike Pence signed what many are calling a fix to the Religious Freedom Restoration Act (RFRA) that he had signed into law just a week before.  Many had feared the Indiana RFRA would authorize carte blanche LGBT discrimination by religious persons and businesses. Notable business owners, sports figures, and elected officials moved for a boycott of the state.

Yet, the Indiana RFRA was never in intent or practice a license to discriminate against the LGBT community, and the amendment mainly restores the status quo. Yet, the way in which the Indiana RFRA was portrayed in the media and the tenor of the public argumentation around it undermines the vital cause of the preservation of both individual and organizational religious freedom in America.

Federal and state RFRAs

Indiana's RFRA was little different than the federal RFRA, which was adopted nearly unanimously by Congress just over twenty years ago and signed with a flourish by President Bill Clinton.  The federal RFRA was enacted in response to a 1990 Supreme Court ruling, Employment Division v. Smith. This case reversed three decades of precedent that established the strict scrutiny standard for evaluating religious freedom violations. The federal RFRA simply put into law the judicial balancing test that had existed before the Smith decision.

What does this mean, exactly? The Indiana law, like the federal RFRA, simply gives people who believe that their freedom to follow their religion has been wrongly restricted by a generally applicable government law a chance to make an argument in court.  The court doesn't give anyone a free pass, but instead employs the "compelling interest" test.  To be excused from the law, the person has to show that his or her religious freedom is substantially burdened by it-and the government has to be unable to persuade the court that the law expresses a compelling government interest that cannot be achieved in a way that is less religiously burdensome.

Four years after passage of the federal RFRA, the Supreme Court ruled that it applies only to federal actions.  In response to this, some twenty states have passed state versions of the federal law.

Do state RFRAs usher in a new era of discrimination?  In fact, religious liberty scholar and same-sex marriage supporter Douglas Laycock says, "RFRA's aren't about enshrining discrimination...they're about preventing discrimination against small, vulnerable religious groups....it's to protect Muslim women against discrimination for wearing veils, or to ensure that Sikh men can wear turbans and kirpans in the workplace." The language but not the effect of the Indiana version of RFRA differed somewhat from the federal RFRA.

Authorizing anti-gay discrimination?

Opponents of the Indiana RFRA claimed that the law would authorize conservative Christian wedding planners, and any other business, too, to refuse to serve LGBT persons by claiming that serving them requires violating their religious beliefs.  Yet, RFRA laws only make it possible for someone to ask a court to rule whether his or her religion has been significantly burdened in an illegal way.  The government would then assert that its anti-discrimination laws represent a compelling interest that must apply to everyone.  In the few instances where this kind of case has been taken to any court, the government has always won. As Professor Laycock states: "No one has ever won an exemption from a discrimination law under a RFRA standard, so there's plenty of precedent saying that if you're seeking exemption from a discrimination law, you lose." 

Why, then, all the concern about discrimination?  Much of Indiana, in fact, has no law banning discrimination based on sexual orientation, so if such discrimination becomes a problem, it would not be due to RFRA.  Indianapolis and other large cities in Indiana do ban LGBT discrimination (while protecting religious nonprofits and churches), but no RFRA has ever been held to justify anyone simply acting like a bigot toward anyone else, overriding nondiscrimination laws simply because someone claims a religious reason.

The actual issue was something else.  Same-sex marriage was legalized in Indiana in an October, 2014, court decision, creating a problem for many people of various religious faiths, who have a different conviction than the courts about what marriage really is.  The legislature has not acted to create specific protections for such religious believers.  But RFRA would offer them an opportunity to ask a court to allow them not to assist with same-sex weddings and celebrations.  

This is not freedom to mistreat people because of their sexual orientation, but freedom to remain true to a religiously based conception of what marriage is.  And RFRA provides no assured result:  just a chance to make a plea to a judge concerning their religiously motivated objections to participating in the celebration or validation of a same sex marriage. No one is suggesting that a business operation in the realm of public accommodations law would be able to simply deny goods or services to and individual based on their sexual orientation as a status.

Many supporters of same-sex marriage and many who just want to be fair are sure that no one should be able to object to facilitating a same-sex marriage or wedding based on religious convictions. Don't allow discrimination is the cry, and yet leaving no legal space for fellow citizens with their own deeply rooted convictions is itself harmful to others.  Applying the nondiscrimination command without religious protections results in lifting up a once-heavily stigmatized and marginalized group-the LGBT community-by stigmatizing and marginalizing another-those who support traditional marriage. 

Whatever the motives, what many opponents of the Indiana RFRA law have actually done, in the name of bringing justice to one group, is to label as bigots other people whose faiths call them to unpopular beliefs about marriage.

The outrage about the RFRA law, so often uninformed by the facts, was fueled by a presumption that religious people must have the worst intentions toward LGBT people:  why else would they press for a law that allegedly would protect bigotry and intolerance?  In fact, most people of faith in our very religious country know themselves to be called to show real and meaningful love to others in their communities.  Remind yourself of all of the faith-based organizations that serve our diverse population.  So the threats and boycotts revealed a paradox, as a Wall Street Journal editorial put it;  "The paradox is that even as America has become more tolerant of gays, many activists and liberals have become ever-more intolerant of anyone who might hold more traditional cultural or religious views."

What does the "fix" do?

The amendment to the Indiana RFRA that was speeded into law fortunately leaves intact the main effect and intent of RFRAs:  outside of the currently contentious area of LGBT equality, protecting people and organizations of unpopular religious convictions and practices-the Muslim woman wearing a headscarf, the Amish family using a horse and buggy, the Jehovah's Witness patient seeking an alternative treatment, the church feeding the homeless.  These protections are an expression of American pluralism and of our commitment to protect each other's conscience and religion.

But the amendment undermines such respect in the case of now-unpopular religious convictions concerning same-sex marriage and human sexuality.  Where in Indiana there are local laws banning discrimination on the bases of sexual orientation or gender identity in offering services or facilities, in housing, employment, or public accommodations, no one and no company can go to court and succeed in winning freedom to follow a contrary religious conviction. 

The Protestant, or Catholic, or orthodox Jewish, or Muslim local bakery or events planner, glad to serve LGBT people along with everyone else, cannot be excused from supporting a marriage ceremony or celebration that violates his or her religious convictions about marriage.  Nonprofit religious organizations are exempt from this ban on discrimination, but not any religious businesses.  Priests and rabbis won't be required to help celebrate same-sex marriages, but a person offering services is required to do so, even when his or her beliefs are just the same as the priest or rabbi.

This is not the finest hour for American pluralism.  Our governments and we citizens need to reconsider how we can live together despite, and with, our deep differences concerning human sexuality.  In a very diverse society that offers everyone multiple choices and that has always encouraged people to live by conviction and not just yield to power or chase after dollars, there must be ways to protect both those who embrace and those who dissent from our society's changing views on marriage, family, and sex. 

RFRA Resources

Baptist Joint Committee for Religious Liberty brochure,"The Religious Freedom Restoration Act:  20 years of protecting our first freedom."

Becket Fund for Religious Liberty, "Faces of Free Exercise" video.

Conference at the Newseum, Nov. 7, 2013, "Restored or Endangered? The State of Free Exercise of Religion in America." Three videos of outstanding presentations and discussions.

Federal contracting LGBT nondiscrimination rules now in effect

As of April 8, 2015, new and modified federal contracts, subcontracts, and vendor agreements are subject to a new ban on sexual-orientation and gender-identity job discrimination.  The federal government has not yet clarified how the new ban intersects with the right of religious contractors, under federal contracting rules, to consider religion when hiring and firing (the religious staffing exemption).  The new rules apply specifically to federal contracting, and not to federal grants.

The new prohibitions stem from President Obama's July 21, 2014, LGBT Executive Order for federal contracting, which preserved the existing exemption permitting religious organizations to consider religion in hiring but did not exempt religious organizations from the new nondiscrimination requirements.  Many religious organizations had sought an organizational exemption to prevent illicit second-guessing of religious employment decisions by the government-the possible occasions when a religious employer would assert that a job candidate does not meet its religion-based qualifications but the candidate would claim that the rejection was simple illegal discrimination based on sexual orientation. 

Despite various requests for clarification, the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has not provided sufficient information or explanations.  As of April 8, it did post new FAQs on "Religious Employers and Religious Exemption," but these essentially only restate the different rules and principles involved. 

The FAQs, for example, affirm the right of religious contractors and subcontractors to "prefer to employ only members of a particular religion" but are prohibited from discriminating based on sexual orientation and gender identity.  Another FAQ says that OFCCP "will follow EEOC and courts' interpretations of Title VII when determining which organizations can claim the exemption and how it applies," and then lists a non-inclusive set of criteria that can be used to determine whether a particular organization will be considered to be a religious employer.  An FAQ says that a religious employer need not be pre-cleared in order to utilize the religious hiring exemption.  And an FAQ notes that "the First Amendment requires a 'ministerial exemption' from employment discrimination laws," allowing a religious organization to freely "make employment decisions about its 'ministers,' a category that includes, but is not limited to, clergy."

These are enhanced FAQs, providing some additional detail, but not sufficiently answering key questions.  IRFA and others have requested answers to three precise questions--see below.

In the meantime, religious organizations involved with federal contracting, or considering such, can look to several resources not noted by OFCCP:

Carl Esbeck, "Differences:  Real and Rhetorical," RFP Cornerstone blog, July 22, 2014, discussing the intersection of the religious staffing right with the new nondiscrimination requirements and noting pertinent cases and legal principles.

Department of Justice, Office of Legal Counsel memo, "[Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act]," June 29, 2007.  The memo shows how RFRA applies in the case of a nondiscrimination requirement attached to a federal grant, but the same principles apply in the case of federal contracts and subcontracts.  

U.S. Supreme Court case affirming the "ministerial exception," Hosanna-Tabor v. EEOC (2012). 

Questions seeking clarification:

1.  Many religious employers, pursuant to their freedom to consider religion when making staffing decisions, maintain both a statement of religious belief and a moral conduct code.  The statement and the code show how the employer understands the religion with which the entity identifies and sets out what the employer considers to be faithful adherence to that religion.  The creed and code are means of assessing employees' commitments and sincerity.  The statement and the code may identify man-woman marriage as the employer's understanding of what the religion prescribes and then identify the limitation of sexual relations to such marriages as an essential element of what the employer considers to be acceptable employee conduct.  Such an employer, when assessing potential employees and current employees against a requirement of limiting sexual relations to man-woman marriage, regards itself to be exercising its freedom to consider religion when selecting and evaluating employees.  If it declines to hire a person who is part of a cohabiting heterosexual couple or does not hire an applicant who announces that she just got married to woman, the religious employer is exercising this protected religious staffing freedom.  Will the OFCCP instead claim that the employer has violated the SOGI nondiscrimination requirements? 

2.  The federal government contracts for various religious services, including youth ministry workers to provide spiritual services on military bases.  When it comes to ministerial employees, a religious contractor may decide who to hire to provide these religious services without regard to the SOGI nondiscrimination requirements-the ministerial exception.  A religious contractor is otherwise subject to the new requirements unless exempt under sec. 204(c).  For example, assume a religious denomination with a doctrine restricting sexual activity to man-woman marriage.  How will a ministry worker recruitment agency of this denomination maintain the confidence of the denomination and be able to recruit ministers from the denomination when it must disregard the denominational doctrine about sexual relations when advertising for, hiring, and managing its own staff, even though it is free to use the denominational conviction about sexual relations when selecting and managing the ministerial workers?

3.  Chaplains and other religious service workers under contract with the federal government require the use of specialized religious items to perform their duties:  communion sets, printed scriptures, religious clothing, and more.  To be acceptable, some or all of these may need to be manufactured in a religiously controlled way by a religious organization known to be committed to and to follow the requirements of the respective religion.  These religious items are provided by specialized vendors.  Those vendors are now subject to the SOGI nondiscrimination requirements, which may require the vendors to abandon employment standards and practices that are required by their respective religions if the vendors are to be theologically qualified to produce the needed religious items (most or all of their employees cannot be classified as "ministerial").  How will the federal government accommodate the need of these vendors to remain faithful to their theological standards, even if these conflict with the SOGI nondiscrimination requirements?