Amid the uproar over Indiana's new Religious Freedom Restoration Act (RFRA), its supporters declare that they never anticipated the critical outcry that has greeted the law's passage. In statements that echo the incredulity of the French prefect of police in the movie Casablanca, they have professed themselves shocked to discover that anyone could object to the idea of giving religious believers added protection from an overbearing government that is apparently dangerously oppressive and hostile to religious practitioners. Given the nuclear reaction that greeted the governor's closed-to-the-press signing ceremony on March 26, it makes sense to ask how so many presumably well-informed elected officials (61 in the House, 40 in the Senate) got this one so horribly wrong. (Only five House Republicans voted no.) What did Republicans in the legislature and the statehouse know about the constitutional implications of Senate Bill 101 before they approved it?
As it turns out, each party in the Indiana House received (whether solicited or not, it is not clear) a long, careful letter from nationally respected legal scholars. One, signed by 16 mostly conservative law professors, laid out a strong case for the bill as a desperately-needed protection for religious liberty. The other letter, signed by 30 mostly liberal scholars, expressed concerns that the bill elevated religious rights over other equally fundamental civil rights. (Full disclosure alert: I know all 46 of these professors, some only by reputation; others are close personal friends as well as colleagues.) In the wake of the controversy that has engulfed our state in the last 10 days, these letters raise two questions. First, what legal advice did each party receive before the vote? And second, did anyone on either side ever read both letters?
The conservative letter, written on University of Virginia Law School letterhead, lays out a defense of the bill that will sound familiar to anyone who has listened to the governor during the past week. It says that religious rights are insufficiently protected under Indiana law; the legislature needs to address state court failures to provide adequate protection; and no discrimination will result because government almost never permits civil rights to take a back seat to rights grounded in religious belief. The only relevant legal or historical context, according to these scholars, is the U.S. Supreme Court's 1990 decision in Employment Division v. Smith, in which the Court held that Native Americans who wanted to use peyote in their religious rituals could be fired from their public sector jobs as a result. To defend the rights of individuals to practice their religions when off the job, Congress passed the federal Religious Freedom Restoration Act in 1993.
The Virginia letter says that the Indiana legislation "is a version of" the 1993 federal law, as are the RFRA statutes enacted in nineteen other states. The letter explains that Indiana law does not provide adequate protection for religious rights: it puts the burden of proving religious objections on the religious practitioner rather than requiring the government to demonstrate a compelling interest in overriding that religious belief. The Indiana RFRA reverses that burden of proof and extends the right to invoke religious belief as an exemption from generally applicable law to corporations of all kinds. Not just human individuals but "a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association," and any organization, whether operated for profit or not, can assert the rights of a religious practitioner under the law. In a footnote, the letter recommends an amendment to provide for declaratory relief (which means the court hearing a dispute can define what rights are at stake) and defining what the government must prove in order to uphold an antidiscrimination law when challenged by a religious believer. The suggested language also provides a broad list of remedies available to protect religious believers from lawsuits by the government. This footnote was inserted, word for word, as Section 10 of SB 101. The Indiana legislation is undeniably "a version" of these other laws. But if I were to choose an adjective to modify "version," it would not be the word "similar."
The provisions on corporate religious rights and plaintiffs' remedies materially differentiate SB 101 from other federal and state RFRA laws, as others have noticed. The Virginia letter contends otherwise. The question of SB 101's similarity to other statutes has become a major piece of the public debate since its enactment. For supporters of the law to acknowledge that the bill radically expands religious rights to corporations of all kinds would be a major concession. It is therefore hardly surprising that no one has spoken up to concede this point, much less defend this part of the bill. Nor will supporters acknowledge that without including LGBTQ citizens in the state's civil rights laws, a step most other RFRA states have taken, the Indiana RFRA gives anyone (including corporations, businesses, and employers) the right to discriminate against these individuals as long as the discrimination is grounded in religious belief.
Now let's consider the legal advice that was provided to the other side. The Columbia letter (so called because it appears on that law school's letterhead) offers a more nuanced analysis of the kinds of rights at stake in this debate. 12 of the 30 signatories to the Columbia letter are familiar with the state and its politics; they teach law at Indiana University's law schools in Bloomington and Indianapolis. The Columbia letter argues that the "finely tuned harmony between religious liberty and other rights secured by the Indiana Constitution and laws" should be maintained. The letter acknowledges that the desire to "secure rights to religious liberty in Indiana" is a valid and legitimate policy purpose, but cautions that the legislation "would amount to an over-correction" that would elevate rights grounded in religious liberty over other fundamental rights. The letter strives to show that fundamental constitutional rights do sometimes come into conflict; yet, as the letter explains, courts and legislatures alike have consistently aimed to avoid permitting one kind of right to trump another. Where government authority and religious belief diverge, the letter argues, government must not play favorites; one religion cannot supersede any other, and no public official can discriminate against believers with whom she disagrees. Likewise, when the government grants exempts people on the basis of their religious convictions from otherwise generally applicable laws, it must ensure that others are not forced to bear the costs (economic or otherwise) of that exemption. The Columbia letter observes that this idea is theoretically at the heart of the Supreme Court's Hobby Lobby decision, but it has yet to be put into effect; as a result, religious belief continues to prevent workers from obtaining the health care to which their employers object. The letter urges Indiana not to make this mistake by amending the bill so that "religion [sic] accommodations are not available where extending them would result in meaningful harm to third parties."
Indeed, amendments to do exactly that were offered in the Indiana House on March 19 and 23. They were rejected in a straight party-line vote. Whatever debate took place on these amendments surely ensured that the House heard the opponents' warnings about the bill's overreach, even if most of its members chose not to heed them. In light of what we now know, it's clear that the law's supporters had adequate warning of what the critical reaction would be before the House voted. By adhering to the position staked out in the Virginia letter and ignoring their colleagues' attempts to modify the bill before it passed, the Republicans acted with a steely single-mindedness. Their discipline would be admirable had it not proven so destructive for our state. But it is simply not possible for anyone to claim they could have had no idea of the consequences of voting yes.
As a legal scholar, I recognize that there will always be differing opinions on all manner of legal matters, particularly on pending legislation. My question, and that of many people across the political spectrum, is why elected representatives who favored the bill were so captivated by the Virginia letter. But there's no mystery as to why the backlash caught them entirely by surprise. The reason is because our society has changed. The social context in 2015 is entirely different from the one that produced the federal RFRA in 1993, which was the same year that President Clinton and Congress adopted the "don't ask, don't tell" policy for keeping gay people closeted as long as they served in the military. DADT fell by the wayside in 2011. It is probably no coincidence that since that time states have been busily accepting marriage equality. Braced by the Virginia letter, the Indiana House Republicans thought they could ignore this changed context. They relied only on the legal opinion that portrayed religious liberty as under attack. But people across Indiana know that it is not. That is why the backlash was so swift, so furious, and so scalding.
So the problem is not that neither side had access to legal advice. Or that the legal advice proffered to the House Republicans was bad. The problem is that the Virginia letter's interpretation of the law was remarkably narrow and one-sided. Further, it completely ignored the larger social context in which we are continuing to debate the nature of civil rights in our country. The reason this matters now is not because the losing side lost. It's because the winning side, in sticking like glue to the talking points provided by their lawyers, completely lost the advantage of victory in the storm that followed. The Columbia letter's vision of a balanced approach to civil rights will end up prevailing if and when the legislature "fixes" RFRA. Legislators who supported this bill and then expressed shock at the very existence of an alternative interpretation of its text and its impact in the real world are now scrambling for their political lives. But perhaps we can all agree on one thing: Governor Pence needs to work on his Captain Renault impersonation.