Law professor: Why Indiana needs 'religious freedom' legislation
Daniel O.
Conkle, professor, Indiana University Maurer School of Law
I am a
supporter of gay rights, including same-sex marriage. But as an informed legal
scholar, I also support the proposed Indiana Religious Freedom Restoration Act
(RFRA). How can this be?
It's because — despite
all the rhetoric — the bill has little to do with same-sex marriage and
everything to do with religious freedom.
The bill would establish
a general legal standard, the "compelling interest" test, for evaluating laws and governmental
practices that impose substantial burdens on the exercise of religion. This
same test already governs federal law under the federal RFRA, which was signed
into law by President Bill Clinton. And some 30 states have adopted the
same standard, either under state-law RFRAs or as a matter of state
constitutional law.
Applying this
test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was
free to practice his faith by wearing a half-inch beard that posed no risk to
prison security. Likewise, in a 2012 decision, a court ruled that the
Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia
churches, ruling that the city could not bar them from feeding homeless
individuals in the city parks.
If the Indiana RFRA is
adopted, this same general approach will govern religious freedom claims of all
sorts, thus protecting religious believers of all faiths by granting them
precisely the same consideration.
But granting
religious believers legal consideration does not mean that their religious
objections will always be upheld. And this brings us to the issue of
same-sex marriage.
Under the Indiana
RFRA, those who provide creative services for weddings, such as photographers,
florists or bakers, could claim that religious freedom protects them from local
nondiscrimination laws. Like other religious objectors, they would have their
day in court, as they should, permitting them to argue that the government is
improperly requiring them to violate their religion by participating (in their
view) in a celebration that their religion does not allow.
But courts generally
have ruled that the government has a compelling interest in preventing
discrimination and that this interest precludes the recognition of religious
exceptions. Even
in the narrow setting of wedding-service providers, claims for religious
exemptions recently have been rejected in various states, including states that
have adopted the RFRA test. A court could rule otherwise, protecting
religious freedom in this distinctive context. But to date, none has.
In any event,
most religious freedom claims have nothing to do with same-sex marriage or
discrimination. The proposed Indiana RFRA would provide valuable guidance to
Indiana courts, directing them to balance religious freedom against competing interests
under the same legal standard that applies throughout most of the land. It is
anything but a "license to discriminate," and it should not be miss characterized or dismissed on that basis.
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