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Why no one understands Indiana’s new religious freedom law

Patience Alexander, 5 (center), daughter of Angie Alexander (left), were recruited by Freedom Indiana to deliver about 10,000 letters from opponents of the Religious Freedom Restoration Act to the office of Indiana House of Representatives Speaker Brian Bosma at the Indiana Statehouse in Indianapolis on March 23, 2015. (AP Photo/The Indianapolis Star, Charlie Nye)
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Indiana became ground zero for the fight over LGBT rights last week when it passed its Religious Freedom Restoration Act, also more commonly known as RFRA. Opponents painted the law as allowing LGBT discrimination. Backers of the bill said the act would protect religious people from having to violate their religious commitments (especially by having to provide services to same-sex couples during a wedding or similar event).

Both sides are overselling the law’s impact, the proverbial case of a fire with more heat than light.

Gov. Mike Pence (R-Ind.) signed a controversial religious freedom bill into law on March 26, 2015. The Post’s Sarah Pulliam Bailey explains what's in that law and why there's so much opposition to it. (Video: Pamela Kirkland/The Washington Post)

Under different circumstances, Indiana’s new RFRA would not be a controversial expansion of government protection of religious liberty. The law is a virtual copy of the federal RFRA that was enacted 20 years ago with near-unanimous support in Congress. The federal RFRA ensured that government could not burden religious exercise unless it was absolutely necessary.

[Also: The First Church of Cannabis was approved after Indiana’s religious freedom law was passed]

For years, RFRA was uncontroversial. Many states passed their own versions of RFRA after a 1997 ruling by U.S. Supreme Court that said the federal RFRA did not apply to state and local laws. Like the federal law, these state laws were passed with little opposition and with the support of a broad coalition that included civil rights groups and churches.

So what’s so controversial about Indiana’s RFRA? Timing.

Indiana enacted its law after the federal courts ruled that same-sex marriage was now legal in the Hoosier state. Indiana not only didn’t have same-sex marriage, it didn’t (and still doesn’t) have a law that protects against discrimination based on sexual orientation.

RFRA was a way for the Indiana legislature to do something in response to the same-sex marriage ruling. RFRA was seen as a way to give residents and businesses that objected to same-sex marriage a way around having to cater to same-sex couples.

Legislators added some differences in the wording of RFRA in hopes of making it more applicable to cases involving discrimination. Despite having nothing on marriage, discrimination laws, or LGBT rights, the bill became symbolic as a fight over LGBT discrimination.

But the symbolic fight has little to do with what actually happens when RFRA claims are raised in the courts. RFRA allows people to make the argument in court that a law shouldn’t apply to them because the both burdens their religious expression and there is not a less burdensome alternative. This is seen as good news for religious minorities whose religious beliefs are often in conflict with the law. Regulations on education of Amish children, prohibitions against head coverings at work, and other laws can be challenged if there is another way for the state to accomplish the same purpose.

Both sides see RFRA as a fight over the limits of discrimination laws, but the new law will likely have little to no effect on discrimination in Indiana for two reasons. First, LGBT discrimination in Indiana is already legal. You don’t need a religious exemption to something you can already do. Second, even when discrimination laws hamper religious practice, there is not a less burdensome alternative. RFRA raises the bar on laws that burden religion but it does not give religion the power to veto laws.

A new Indiana law designed to keep the government from forcing business owners to act against their religious beliefs draws fierce criticism. (Video: Reuters)

In the 20 years since RFRA became federal law, there has not been a single case in which a person successfully used RFRA to get around civil rights laws. There have been some attempts, but they have all failed.

Supreme Court Justice Samuel Alito talked about the limits of RFRA during last year’s Hobby Lobby decision. Writing for the majority, Alito wrote that RFRA cannot “provide a shield for employers who might cloak illegal discrimination as a religious practice.”

RFRA doesn’t stop government from limiting religious freedom. It simply states that government can’t do it if there is a less restrictive way to accomplish the same goal. The government must collect taxes and protect against discrimination even if it hampers religious beliefs or practices.

Some opponents of the law are rightly worried that Indiana made changes to typical RFRA laws.

The law allows corporations to make a RFRA claim (federal law applies only to individuals and “closely held” companies like Hobby Lobby). It’s unclear if this new expansion will matter because it will be difficult for a corporation to claim that it holds a sincere religious belief when it has a wide diverse ownership. Still, it does expand the number and type of groups that could make RFRA claims in court.

The law also makes it clear that RFRA can be used in lawsuits between individuals. RFRAs usually apply only to conflicts between the government and individuals. A person could claim that the law being used to bring the lawsuit overly burdens the religious exercise of the defendant. In practice, some federal circuit courts already allow defendants to make RFRA claims in individual lawsuits; some do not. In both cases, the standard for raising a RFRA claim remains the same: is the law burdening religion, and is there another less burdensome alternative?

Indiana’s RFRA will not succeed as a defense in discrimination lawsuits. If Indiana’s businesses are permitted to deny services to same-sex couples, it most likely won’t happen because of the new law; it will happen because the state does not include gays and lesbians in its civil rights laws.

Tobin Grant blogs for Religion News Service at Corner of Church and State, a data-driven conversation on religion and politics. He is a political science professor at Southern Illinois University and associate editor of the Journal for the Scientific Study of Religion.

(This post has been updated for clarification purposes.)

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