–Indiana Gov. Mike Pence (R), on ABC’s “This Week,” March 29, 2015
Numerous readers tweeted and e-mailed The Fact Checker asking for a ruling on whether the controversial Religious Freedom Restoration Act signed into law in Indiana was the same as a bill supported by then-state-Sen. Barack Obama in 1998.
Pence used this talking point twice while refusing four times to answer a direct question from host George Stephanopoulos about whether the law would permit discrimination against gays and lesbians.
As a practical matter, the two laws have similar titles but are not word for word the same. (Here are links to the Indiana version and the Illinois version.) Pence’s office did not respond to a query, but we will assume that Pence was arguing the laws were broadly similar with the same desired impact. Does he have a case?
The Religious Freedom Restoration Act of 1993, signed by then-President Bill Clinton (D), was spurred by a Supreme Court ruling against a Native American man who sought unemployment benefits after losing his job because he had ingested peyote as part of a religious ceremony. The federal law was broadly supported in Congress, with then-Rep. Charles E. Schumer (D-N.Y.) introducing the bill in the House.
In 1997, the Supreme Court said the federal law did not apply to state laws, prompting many states such as Illinois to pass a state version. Before passage of the Indiana law, 19 states passed such laws while 11 more interpreted that their state constitutions already provide such protections. We checked the news clips on passage of the Illinois law and there was little controversy about it, though the governor objected to these rights being extended to prisoners; his partial veto was overridden.
Since then, numerous plaintiffs have used the laws (generally known as RFRAs) to challenge government actions or activities that threaten their beliefs. Mollie Hemingway, a senior editor at the Federalist who says the media has misrepresented the Indiana law, has compiled an interesting list of various plaintiffs who relied on RFRAs, including an Apache feather dancer permitted to keep eagle feathers and 40 churches in Chicago who unsuccessfully fought a zoning law that required a special permit for a church in business and commercial areas.
In broad strokes, the Indiana and Illinois laws are similar. But there are a couple of important differences, and whether those are important can depend on the legal expert you consult.
First, there is a section in the Indiana that clarifies that a “person” can include a partnership, company, joint-stock company and other for-profit businesses. This language appears to be related to the recent Supreme Court ruling in Burwell v. Hobby Lobby, in which the court ruled 5 to 4 that the federal RFRA protected family-owned companies from complying with the contraception mandate in the Affordable Care Act.
Pence mentioned the Supreme Court case in his remarks, but it’s worth noting that generally such definitions of a “person” are already in the U.S. Code under what is known as the Dictionary Act. So the practical effect may be minimal.
Second, and potentially more important, the Indiana law has this section:
“A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”
By contrast, the Illinois law says this:
“If a person’s exercise of religion has been burdened in violation of this Act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government.”
There are two important distinctions — the language saying the government does not need to be a party and the addition of “likely” to be burdened.
With one exception (Texas), the language regarding the government not needing to be a party does not appear in any other RFRA. But as Shruti Chaganti noted in an interesting 2013 article in the Virginia Law Review, federal appeals courts have been split on whether the RFRA could be used in a private suit.
The U.S. Courts of Appeals for the 2nd, 8th, 9th and D.C. Circuits have supported that right, but others have not. So Indiana, which is in the 7th Circuit, is making the right explicit, resolving that disputed issue expressly in favor of religious claimants. (The Illinois law only makes reference to being able to able to recover attorney’s fees and costs if a claim is upheld against a government, suggesting the possibility that law applied to suits between private parties.)
Even so, there also are potentially important differences between Indiana and Texas. This is the Texas language:
“A person whose free exercise of religion has been substantially burdened in violation of Section 110.003 may assert that violation as a defense in a judicial or administrative proceeding without regard to whether the proceeding is brought in the name of the state or by any other person.”
The Indiana law has a potentially lower threshold – “likely to be substantially burdened” — while the Texas law also made clear that the RFRA does not trump existing civil rights law: “Except as provided in Subsection (b), this chapter does not establish or eliminate a defense to a civil action or criminal prosecution under a federal or state civil rights law.”
The Indiana law does not have such language on civil rights – and during debate over the bill, lawmakers voted down amendments to make clear that the law was not intended to foster discrimination.
“This language is unusual and could mean that someone could file a lawsuit even if their religious exercise isn’t currently burdened or burdened in a significant manner,” said Eunice Rho of the American Civil Liberties Union, who said the language was “curious.” She said the Texas law, by contrast, was drafted so that “it cannot be used in a way that could jeopardize existing civil rights laws.”
In particular, some advocates of gay rights fear that the language in the Indiana law was crafted because of a New Mexico case in which a Christian photographer was fined after refusing to photograph a same-sex wedding. The photography company tried to raise an RFRA defense, but the New Mexico Supreme Court rejected it on the grounds that it was a private dispute.
This brings us to final distinction – the context in which the laws were crafted. We noted that the Illinois law was not especially controversial — but the Indiana law has been attacked as being anti-gay. One reason is that some advocates of the law have expressly said that it would allow businesses to refuse to support same-sex marriages. When Pence signed the law, the right-leaning group Advance America gave “three examples” of how the law would change Indiana:
- “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!”
- “A Christian business should not be punished for refusing to allow a man to use the women’s restroom!”
- “A church should not be punished because they refuse to let the church be used for a homosexual wedding!”
Moreover, Indiana (unlike many other states, including Illinois) does not have anti-discrimination laws based on sexual orientation, though there are gay rights laws in the cities of Indianapolis, Bloomington and South Bend. The fact that lawmakers rejected anti-discrimination clauses added to the anxiety of gay-rights advocates. (In Georgia, when an anti-discrimination clause was successfully added to a proposed RFRA, advocates of the legislation pulled the bill entirely.)
Yet in response to the outcry over the law, Indiana lawmakers on Monday pledged to alter it so it could not be used to discriminate against gays.
Douglas Laycock is a University of Virginia Law School professor who supports a federal right to same-sex marriage and yet believes the controversy over the Indiana law has been overblown. He said Indiana should enact a gay rights law; he notes that the absence of one means it is currently not illegal in Indiana to refuse to serve gays. At the same time, he said, “a state RFRA cannot exempt anyone from a Supreme Court decision requiring same-sex marriage as a matter of constitutional law.”
Ultimately, the actual impact and meaning of the Indiana law will be determined by the courts. It is important to remember that RFRAs do not change existing laws; they only give plaintiffs a potential legal tool with which to make their case. But there are no guarantees they will be successful. Pence made this point in a Wall Street Journal opinion article that appeared Monday evening: “RFRA only provides a mechanism to address claims, not a license for private parties to deny services.”
The Pinocchio Test
Pence might be on more solid ground to argue the similarity of the Illinois and Indiana laws if he had not repeatedly ducked questions about whether the law will permit discrimination against gays and lesbians.
If a governor is going to appear on national television, he needs to come prepared with an answer to an expected question. Advocates of the law have said the law will give new rights to Christian businesses that oppose same-sex marriage, and Pence should be able to explain whether he believes they are right or wrong. (In the Wall Street Journal, Pence still skirted the issue but personally was more forceful, saying, “I abhor discrimination. … If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore.”)
Pence claimed the Indiana law was “same version” and the “very same language” as the Illinois version and, on a broad level, one can make a case that the two laws are roughly similar. But there are certainly some differences — which might become important as cases based on the law make their way through the courts. We wavered between One and Two Pinocchios, but lean toward One, given the uncertainty of the impact of these textual differences.
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