On Monday, we covered (as apparently several national outlets did) how the claim that Indiana’s Religious Freedom Restoration Act (RFRA) is the same as the federal and state versions in 18 other states was grossly inaccurate because Indiana’s statute includes an expansive provision that allows it to be used in private lawsuits (where the government is not a party) without exempting the statute from applying to civil rights/anti-discrimination laws (like in Texas). In short, the oft-cited claim by defenders of Indiana law was that it was no different than what President Clinton signed is simply a lie.

Another claim, which has been repeated by conservative legal scholars and on Fox News, is that no RFRA law has ever successfully been used in a discrimination case. Amazingly, some have even cited the case in New Mexico.  The same case in New Mexico we discussed on Monday where the state’s Supreme Court refused to apply the RFRA law because it was a private suit between two parties and not the government. Again, the Indiana statute specifically contains a provision that explicitly states that it may be asserted in cases where the government is not a party.

Here’s a recent nationally-known example of this argument in action:

“RFRAs have never been successfully used in their 22-year existence to allow discrimination, including in cases in New Mexico and Washington state, which has an RFRA standard through court rulings, that involved businesses refusing service to same-sex couples, according to Douglas Laycock, a law professor at the University of Virginia. “There are hardly any cases about discrimination,” he wrote in an email to the Weekly Standard, “and nobody has ever won a religious exemption from a discrimination law under a RFRA standard.” (emphasis added.) [Source: Vox (3/31/2015), “How Indiana’s religious freedom law sparked a battle over LGBT rights.”]

Well, if by nobody, Professor Laycock meant nobody but the United Methodist Church in New York in an age discrimination case, then he’d be correct. In Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), the U.S. Second Circuit Court of Appeals ruled that the federal RFRA was permitted in private suits involving discrimination claims because it would not make sense why Congress would permit them in cases where the EEOC was a party but not in cases brought under the same laws brought privately.

After finding that a party in a private suit could raise the federal RFRA as a defense, the Second Circuit (with future Justice Sotomayor strongly dissenting) remanded the case back to the trial court to see if the RFRA precluded a minister from bringing an age discrimination claim. In other words, this is the very kind of case defenders of Indiana’s law claim does not exist. But it only exists after the court found that such laws can be used in private suits where the government is not a party. You know, like Indiana’s new law explicitly provides. This case shows why the private suit issue matters. Since the EEOC and state equivalents like the Ohio Civil Rights Commission do not file nearly as many lawsuits as private individuals, the only way the RFRA can be used as an effective defense against discrimination laws is if it can be used in private suits.

Now I should concede this is one case and there’s always a chance that even a legal expert like Professor Laycock from the University of Virginia simply did not know about it. Except that the University of Virginia Law Review specifically discussed this very case in 2013. Oh, and guess who the author of that Note just happened to thank for guiding her review of the case?


It should be noted that Hankins is not a widely accepted opinion.. Several federal appellate courts at both the federal and state level have interpreted their RFRA laws to not apply in private suits. For example, the Seventh Circuit, in an opinion written by renown conservative jurist Richard Posner specifically rejected the Second Circuit’s interpretation in  Richard Tomic v. Catholic Diocese of Peoria (7th Cir. 2006), 442 F.3d 1036.

But that’s not Prof. Laycock’s only documented familiarity with the Second Circuit case. He has cited it in at least two appellate briefs in which he was listed as counsel. In fact, one case in particular that shows just how disingenuous his claim that Indiana’s law does not invite its RFRA law from being used to defend wedding vendors to discriminate against same-sex couples.

It turns out that Prof. Laycock was one of the attorneys in a brief that urged the New Mexico Supreme Court to interpret its RFRA to allow it to be asserted in private suits (such as Indiana’s explicitly provides) in the very case discussed on Monday. As you may recall, the New Mexico Supreme Court rejected the argument that its RFRA applied to private suits, and in so doing, held that it could not be asserted as a defense in a case where a wedding vendor denied service to a same-sex couple.

So, let’s recap: One of the leading “legal experts” defending Indiana’s law against charges that it could be used to allow sexual orientation discrimination is someone who has urged courts to interpret other state statutes to allow just that. And he has specifically done so by implying such laws can be applied in cases that the Indiana statute specifically provides its law can be applied, which just happens to be the only way any court in the United States has ever allowed a RFRA law to be considered as a defense against discrimination.

Because the Seventh Circuit, which has jurisdiction over federal Indiana cases has already specifically rejected Hankins, Indiana Republicans specifically wrote a provision requiring Hankins to apply to the state’s new RFRA law. The only reason this has ever been an issue is when parties have sought to use RFRA’s as a shield to defend against discrimination claims. And yet, these experts are claiming this same provision is not that significant of a change nor creates the ability for parties to legally discriminate. Really?

So, yes, not only are conservatives wrong in claiming that Indiana’s law is no different than other RFRA laws AND that such laws have never been successfully accepted as a possible defense against discrimination claims, but Indiana’s law is explicitly written to have language to permit it to be used as a defense against discrimination claims. It is clear that is the intent of the law because why else would they have written it to include such a provision given the case law. It’s hard to see given the legal history and cases over RFRA why else Indiana would draft their RFRA in such a manner without an intentional desire to see such cases used as defenses to discrimination cases.

Prof. Laycock’s argument would have more credibility if you ignore the fact he’s argued to other courts that such laws SHOULD be interpreted to allow them to do what he claims Indiana’s law won’t do. Amazingly, one outlet interviewed Prof. Laycock where he talked about the New Mexico case without disclosing he actually was one of the attorneys in the case urging a different result. Instead, they actually present him as a pro-marriage equality defender of Indiana’s law.

Either that or we’re all supposed to believe it’s a sheer coincidence that Indiana’s law just happens to have a specific provision so it would be interpreted in a way the New Mexico Supreme Court rejected but the Second Circuit accepted in one common regard that determined the outcome of both cases.