The past few weeks, Hoosiers have been thrust into the national spotlight over incredible misunderstanding and distortion by many in the media about the Religious Freedom Restoration Act that was recently passed.
I would like to clarify why the Indiana General Assembly passed this law and what the law does and does not do.
First, we must develop an understanding why the federal government and 30 other states have adapted RFRAs.
In 1990, the U.S. Supreme court ruled in Employment Division v. Smith that the First Amendment did not cover “generally applicable” laws which burdened the free exercise of religion.
To restore these protections, the federal government overwhelmingly passed the federal RFRA in 1993, which was co-authored by Sen. Ted Kennedy and Rep. Chuck Schumer. It passed out of the House unanimously, passed the Senate by 97-3, had the full support of the ACLU and was signed into law by an enthusiastic President Clinton.
RFRAs have nothing to do with discrimination or same-sex marriage. They merely established a legal test for judges to use when deciding whether or not a government act goes too far in burdening someone’s exercise of religion. Specifically, the RFRA test says that government cannot “substantially burden” religious freedom unless the action furthers “a compelling governmental interest” using “the least restrictive means” possible. The shorthand name for this legal test is “strict scrutiny.”
In 1997, the US Supreme Court ruled the constitutional separation of powers prevented Congress from applying the RFRA to state laws, prompting states to adapt their own RFRA laws. Today, 19 states have a RFRA law and 11 other states that apply strict scrutiny to laws that burden religious freedoms through their constitutions.
Without a RFRA and the “strict scrutiny” guidance they provide courts, it is unclear how a court would decide in the case of a religious freedom case. Given the political climate of today, from the recent Supreme Court Hobby Lobby decision to the Houston mayor issuing subpoenas of local clergy sermons and church records, it is incredibly important to give our courts the necessary structure to deal with government suits against its citizens in religious belief protections.
Contrary to what many would lead us to believe, RFRAs are not a “license to discriminate.” In the more than two decades since the adaption of RFRAs by the federal government and 30 other states, there has not been one documented case of a court ruling that a RFRA allows discrimination based on sexual orientation. In those rare cases in which a RFRA was tried to be used as an individual defense in religious belief violations, they have lost their case in the courts.
During the recent assault on truth, facts, reason and logic, many in the media were constantly misreporting the actual facts of the bill. Our state was threatened with economic destruction, lawmaker’s children were threatened, some of their homes had objects thrown through the windows, their careers were being threatened and businesses were threatened to be burned down.
Major corporations were intimidated into demanding a “fix” to the massively misreported and misunderstood bill, with some major companies threatening to leave the state.
These acts are being committed by people demanding tolerance, acceptance and co-existence, yet who were threatening the state with hundreds of millions of dollars of economic loss and the destruction of the lives of thousands of innocent people.
Given the very real situation the livelihood of thousands of Hoosiers was at stake, the potential loss of hundreds of millions of dollars in revenue, a potential downgrading of our valued AAA credit rating, along with the timing of the Final Four having the enormous media attention at the moment, it was absolutely necessary to evaluate the situation to determine an acceptable solution.
The solution was incredibly simple. It merely clarified what the bill never intended in the first place and that was discrimination.
The solution also pays explicit respect to the Indiana Constitutional protections that have served Hoosiers so well for more than 150 years. The new language specifically states that it does not negate any rights available under the Constitution of the state of Indiana, particularly Article 1 Section 3, which states — “No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.”
In closing, I want to recap the actual facts of our new RFRA law. The new Indiana RFRA is necessary given today’s political climate, is nothing more than a very strict set of guidelines for the courts to be used in a governmental action involving a person’s religious beliefs, does not allow discrimination, has failed in prior court decisions when used as a religious belief defense, and still leaves Hoosiers with the protections our state Constitution has provided for more than 150 years in cases of religious beliefs and rights of conscience.
Jim Lucas is state representative for District 69. Contact him at 800-382-9841 or H69@in.gov.