Calvin

Two Oregon men belonging to a Native American church were terminated from their jobs in violation of the employer’s drug policies because they had consumed peyote, a hallucinogenic substance that is consumed in accordance with Native American spiritual practices. The men took the case to the United States Supreme Court to argue that their termination and subsequent denial of unemployment compensation violated their First Amendment freedom of religion rights as applied to the states through the Fourteenth Amendment. In what was essentially a 6-3 judgment against the men, the Court held the prohibition against consuming peyote was generally applied in ways that carried no religious connotations, and therefore, the denial of unemployment was appropriate despite the fact that the peyote was consumed in accordance with the men’s faith.

Because this case was one of several that had infringed on the religious and spiritual practices of Native Americans in which Congress’s prior efforts to protect had proven toothless, Congress attempted to essentially overturn the Court’s decision in Employment Div. v. Smith, 494 U.S. 872 (1990), by passing legislation called the Religious Freedom Restoration Act (the “RFRA”), which passed both houses of Congress with only three no votes in the Senate before being signed into law by President Clinton in 1993. After the U.S. Supreme Court ruled that the RFRA could not constitutionally be applied to the states in City of Boerne v. Flores in 1997, many states passed similar legislation at the state level.

Before Indiana, roughly 18 other States had passed legislation similar to the federal RFRA. Ten other states have interpreted their own freedom of religion clauses in their respective state constitutions to provide the same strict scrutiny standard that requires the governmental action (statute or regulation) at issue must further both a compelling governmental interest while being narrowly tailored to achieve that interest to minimize the imposition on religious freedom. Among them, the Ohio Supreme Court in Humphrey v. Lane in 2000 specifically rejected the Court’s rationale in Smith and held that strict scrutiny applied to general application laws that interfere with religious practices. That case, it should be noted, dealt with a Native American prison guard challenging ODRC rules requiring him to cut his hair at a length inconsistent with his religious practices. It has not been applied in anything other than challenges to government statutes and regulations – not in private business litigation as a defense to providing services to someone on religious grounds.

Yes, you read that correctly — the main thrust of the law currently in controversy in Indiana as legislation has been Ohio Supreme Court precedent since 2000. In other words, the law is essentially the same (exception for one major difference discussed below). So when Indiana Governor Pence went on the Sunday political talk shows and mentioned that his law is no different than federal law and the law in over half of the other states, he was technically correct. Defenders of Indiana’s new law are also technically correct in claiming that such laws have not been the successful basis to legally permit sexual orientation discrimination. But that’s more the result of there having been little to no attempts to do so and because those statutes do not provide the right to be asserted in civil litigation between private parties where the government was not involved. As you’ll see, those are rather major distinctions which explains why the conservative push back is based on a false equivalence.

I could find only one attempt, a case in New Mexico, in which a wedding vendor attempted to use a state’s RFRA (unsuccessfully) to deny service to same-sex couples looking to marry, but New Mexico specifically includes sexual orientation in its anti-discrimination Human Rights Act while Ohio and Indiana do not. The Court in that case held that the RFRA did not apply because the government was not a party. Therefore,this case hardly rebuts the assertion that a state’s RFRA cannot lead to permitting discrimination against LGBT individuals in states where sexual orientation and transgender are not protected classes in the state’s anti-discrimination laws. Regardless, Indiana’s RFRA includes a specific provision that allows it to be asserted in litigation even when the government is not a party. In other words, it was specifically written to prevent Indiana courts from refusing to apply the RFRA as the New Mexico Supreme Court did in the wedding vendor case dealing with a same-sex couple. That cannot be dismissed as a sheer coincidence.

If you recall, Arizona Governor Jan Brewer vetoed legislation in 2014 that expanded that state’s already existing RFRA law to include a provision allowing it to be asserted in private civil litigation in which the government was not a party. It is again no coincidence that both the Arizona and Indiana legislation happen to have occurred after the 2013 New Mexico Supreme Court ruling and that both contain provisions that specifically attack the rationale of that Court decision. So no, the law in Indiana is not similar to that passed by the federal government or in other states due to this one provision. Ultimately, this is what separates the law in Indiana from the law in Ohio, as Ohio’s standard, like the federal government statute, only applies in cases challenging generally-applied government statutes and regulations, not private commercial behavior. Even Texas’ RFRA has a specific provision that exempts it from being applied to its civil rights laws.

At the time the federal RFRA was passed, virtually nobody considered it would be the legal basis to allow private entities to discriminate because nothing in the actual language of the federal law provides such an ability, unlike Indiana’s new law. In theory, the prevention of discrimination of sexual orientation is already a compelling government interest under the Equal Protection Clause of the 14th Amendment to meet the first part of the RFRA test. However, sexual orientation as a suspect class that enjoys protection under the Equal Protection Clause has not always been recognized by the Supreme Court and many states, such as Ohio, still do not include sexual orientation in their anti-discrimination statutes.

Gender has a far more established history as a compelling government interest to satisfy the test required by the RFRA to uphold a government action, yet the United States Supreme Court in the Hobby Lobby case upheld that a private, secular, for-profit corporation could challenge a requirement to provide prescription contraceptive care (even when that care is not being prescribed mainly for family planning purposes) to its female employees.  Hobby Lobby was a case brought under the RFRA, not the freedom of religion clause under the First Amendment as many incorrectly believe. In that decision, the Court ruled in Hobby Lobby‘s favor saying that the HHS provision requiring contraception coverage was not narrowly tailored to be the least restrictive means to further that interest. But at least Hobby Lobby involved a challenge of a government regulation.

And that’s why Pence and the Indiana Republican arguments fall flat. What they have yet to publicly explain is why Indiana suddenly felt the need to enact an RFRA twenty-two years after the federal government did so. In fact, Indiana’s Supreme Court had ruled very similar to Ohio’s. Neither Pence nor his fellow Republicans have cited any non-LGBT case in Indiana where state courts have failed to apply strict scrutiny to a religious freedom case in state court that they would like to pass legislation to overturn. They aren’t citing any Native American peyote cases in Indiana.

What could explain the curious late timing of Indiana conservatives is the U.S. Seventh Circuit Court of Appeals’ decision in Baskin v. Boginin which the Court of Appeals ruled Indiana’s ban on recognizing same-gender marriage was unconstitutional. With constitutional and statutory prohibitions against marriage equality beginning to crumble into the ash bin of history, conservatives see a way in Hobby Lobby to continue to justify discrimination against people on the basis of sexual orientation under the RFRA (something nobody in 1993 would have foreseen), but only if they can get the RFRA to apply in non-government litigation. The RFRA, thanks to the Court’s decision in Hobby Lobby, is giving the social conservative movement a lifeboat to pursue its social agenda that the Court started to take away in Winsor when it struck down part of the federal Defense of Marriage Act.

So yes, the situation in Indiana is not quite as simple as you’ve been told. The RFRA legislation in Indiana is not materially different than the federal one that President Clinton and Vice President Al Gore publicly signed into law in an East Garden ceremony in 1993 except in one major regard. So to an extent, the Indiana Senate Republicans are correct. But just because the federal government and other State RFRA laws have not been used as license to discriminate on the basis of sexual orientation does not mean that Indiana’s cannot be. The reality is that using the RFRA in such a manner has only been thought possible since the Hobby Lobby decision and Indiana Republicans have gone out of their way to make sure that Indiana courts cannot rule as New Mexico did in refusing to apply its RFRA law. In ignoring that one major difference, conservatives have duped even the Washington Post into incorrectly wondering what all the controversy is about.

In short, Indiana’s RFRA law is Hobby Lobby on peyote. And that’s a bad trip.

 

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