Wednesday, April 1, 2015

Firestorm in Indiana: The History of RFRA

President Clinton Signs RFRA
You may have noticed that there has been a large firestorm over Indiana’s new Religious Freedom Restoration Act signed by Gov. Mike Pence on Thursday. Indiana’s law is based off the federal Religious Freedom Protection Act. To understand the whole issue, we need to look at the history of the federal law, and then see why states have begun enacting their own laws.

The Religious Freedom Restoration Act of 1993 (RFRA) was introduced by then Representative Charles Schumer (D-NY) and had 170 cosponsors in the House of Representatives (including 121 Democratic cosponsors). It was introduced to ensure that no government could substantially burden a person’s exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means of furthering that interest. This was known as the Compelling Interest Test, and had been set by the Supreme Court in cases such as Sherbert v. Verner and Wisconsin v. Yoder. However, in 1990, the Supreme Court ruled in Employment Division v. Smith that the Compelling Interest Test did not apply to “neutral laws of general applicability.” RFRA was introduced to restore the Compelling Interest Test whenever government would substantially burden a person’s exercise of Religion.

The House of Representatives passed RFRA unanimously, and the vote was nearly unanimous in the Senate. It was signed by President Clinton on November 16, 1993. The law was supported by both conservative and liberal groups, including the American Civil Liberties Union and the National Association of Evangelicals among others.

The law originally applied to all levels of government, including state and local government. However, in City of Boerne v. Flores, the Supreme Court ruled that the RFRA could not apply to states, but that it still applied to the federal government.

After the Boerne ruling, many states passed their own version of RFRA. Including Indiana’s new law, there are currently 21 states with a version of the RFRA. In fact, when President Obama was in the Illinois State Senate, he voted for Illinois’ RFRA.

So, if there has been so much bipartisan support for both the federal law and state versions, why is there so much outrage towards Indiana’s law? The outrage seems to stem mainly from the current political debate over same-sex marriage and a fear that the law will lead to discrimination against homosexuals. However, there is nothing in the RFRA that mentions same-sex marriage or opens the door to discrimination.

The timing of the passage and signing of the RFRA does not change the language of the law. The language is still substantially the same as the federal RFRA as well as the other state versions of the law. The only difference between Indiana’s law and any of the other laws is that Indiana’s law includes a broader definition of who is protected by the law. This broader definition was written to be consistent with the application of the federal RFRA in Burwell v. Hobby Lobby.

In conclusion, Indiana’s RFRA is not opening the door to discrimination any more than the federal RFRA or state versions already has. The law is simply ensuring the residents in Indiana have the same protections of their religious liberty as residents of Illinois and 19 other states currently have. The federal RFRA and state versions have been crucial to protecting the religious liberty of many religious minorities. For more on how the RFRA has helped, check out this blog post at The Federalist.

The liberals attacking Indiana’s new law are using unfounded fear-mongering to whip up opposition to the law. However, the simple truth is that the RFRA is an important protection for religious liberty.

Post by Glenn Bertsch

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