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Why I Hope My Church and Others Come to Indiana Now That RFRA Is Changed

I am proud that my church was one of the first to express concern and take action. And I'm happy the legislature and governor listened to us and changed the law.
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The board of the Christian Church (Disciples of Christ) voted to move our 2017 general assembly from Indianapolis in response to Indiana's Religious Freedom Restoration Act (RFRA).

In light of changes recently made to the law, the board will reconsider.

I don't speak for my wife (who's general minister and president of the church), but here's why I think we should now bring our assembly back to Indianapolis.

I'm not sure what the real-world impact of the law would have been, but as I blogged last week, the timing of the law and public statements of its supporters made it crystal clear that, whatever else was at stake, this law was about protecting Indiana businesses that deny services to same-sex couples exercising their legal right to marry.

To underline this intent, the law changed the definition of "persons" protected by earlier RFRAs to include certain for-profit businesses.

When business and civic leaders expressed concern that this might lead to discrimination against gay and lesbian people, the legislative majority responded with deafening silence.

I am proud that my church was one of the first to express concern and take action. And I'm happy the legislature and governor listened to us and changed the law.

A little history shows why the "fixes" lawmakers passed actually fix the worst features of the law.

Earlier RFRAs restored the heightened standard courts had used since 1963 to adjudicate religious freedom challenges individuals and their faith communities brought against specific laws and government policies.

Indiana's law explicitly spread this umbrella of extraordinary protection to for-profit businesses and, in a stunning move, applied it to civil cases between private parties where the government wasn't involved at all.

The original court ruling that lies at the root of all RFRA laws illustrates the problem with that.

In the Sherbert ruling in 1963, the Supreme Court said that laws and regulations must meet a higher standard than usual when they "substantially burden" someone's religious beliefs and practices.

The issue was whether a Seventh Day Adventist fired from his job for refusing to work on Saturday could be denied unemployment compensation. The court said the state was wrong to deny his claim, because his First Amendment freedom to practice religion was at stake: he wasn't skipping work to sleep in; his faith prevented him from working on sabbath.

The court didn't say the law was bad in every case, but that its application in this case was unconstitutional because it didn't make a reasonable allowance for the "substantial burden" put on the man's ability to practice his faith.

A law that infringes the free exercise of religion, the court said, must meet "strict scrutiny," the highest standard of judicial review. That means the law's goal must be essential, not just preferred (i.e., it must serve a "compelling governmental interest"), and it must be "narrowly tailored" so it's the "least restrictive" way to meet the need.

This doesn't make religion a "get out of jail free" card for violating any law. Someone who bombs a government center or kills a doctor or plots to fly planes into buildings won't win in court by claiming "religious freedom." You clearly can't have a "religious exemption" for mass murder or marrying 12-year-old girls. The "least restrictive" way to deal with these things is to ban them completely.

Notice also that the Sherbert ruling addressed government action, not private business transactions.

It didn't say the millworker should get his job back. It said the state couldn't refuse to send him unemployment checks. The RFRA Bill Clinton signed also responded to an unemployment compensation case. Earlier state RFRAs only addressed lawsuits against the government. Even the Hobby Lobby Supreme Court ruling that gives Indiana's law its most significant changes to RFRA is about a government regulation.

Indiana's law veered off into whole new territory by applying the higher standard of review to all legal cases, "regardless of whether the state or any other governmental entity is party to the proceeding."

Think about that. It gave the extraordinary legal protections of RFRA against government actions to private lawsuits as well!

I'm not sure what this would even mean in the real world. Which side in a civil suit has to meet the "compelling governmental interest" standard when no "governmental entity" is involved in the case -- the person suing or the one getting sued?

Did Indiana lawmakers mean to say that Sherbert didn't go far enough? Should the plaintiff have gotten his job back as well? Should the two members of the Native American Church in the case that prompted the first RFRA have gotten punitive damages from the private addiction center that fired them for using peyote in religious rituals? Should an employer have to meet the government's "strict scrutiny" standard to fire an employee for cause? To whom exactly would this standard apply in a lawsuit in civil court where the government is neither plaintiff nor defendant?

I don't think lawmakers thought this through.

According to the law's supporters, it was needed to keep customers, employees, and renters from using local and state anti-discrimination laws and federal rulings to sue businesses for denying services, accommodations, etc., based on sexual orientation.

But that's a very dangerous thread to pull.

Let's assume, for example, that a court decides that Indiana's RFRA overrules Indianapolis's human rights ordinance when a customer sues a florist for refusing to sell him flowers for his wedding to another man.

Wouldn't the same reasoning apply if the florist's faith condemns interracial marriage?

"Sorry, nothing personal. It's just that I believe the Bible forbids blacks marrying whites. I'd be happy to sell you these flowers for your patio; I just can't do it if you're going to be using the patio for your interracial wedding."

Let's say it's not just a civil suit. The florist also gets prosecuted by the city attorney. How could a court say that the city's ordinance can't prevent discrimination when it comes to same-sex weddings, but it can prevent discrimination when it comes to interracial weddings? What exactly is the difference? Where would this stop? What civil rights protections would we unravel if courts held that Indiana's RFRA allows businesses to withhold certain services from gay and lesbian people?

Fortunately, lawmakers now have clarified that Indiana's RFRA doesn't do that. Now, it explicitly "does not authorize a provider to refuse to offer or provide service, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service."

That's really clear.

It can't be used to "establish a defense to a civil action or criminal prosecution" regarding denial of services, etc. It doesn't "negate any rights available under the Constitution of the State of Indiana." So it can't be used in court to undo or limit civil rights laws, human rights ordinances, or judicial interpretations of constitutional rights.

These are significant clarifications of the law.

It's also the first time sexual orientation and gender identity have been recognized in Indiana law as legitimate civil rights issues.

Finally, lawmakers added explicit protections for churches, nonprofit religious organizations, and rabbis, priests, pastors, and other religious leaders engaged in religious activities. So no clergy will be forced by the government to conduct same-sex weddings. This language was unnecessary, but it doesn't hurt anything, and it's probably wise to reassure people given the vast amount of misinformation on that score.

We should all work to lower the sense of panic around what is in fact an enormous and rapid change in our social attitudes and legal code. It's going to take awhile for us to sort it all out, to decide where to draw the lines in cases where fundamental rights -- free speech, due process, equal protection, and religious freedom -- are pulling us in different directions. But we'll get there.

I'm grateful the governor and lawmakers listened to our church and others and took corrective measures to fix an ill-considered, poorly constructed law that sent a bad message about our state. It's a start, but more hard work must be done to protect the civil rights of all people and to repair our reputation.

I hope my church will lead the way by coming back to my wonderfully progressive and welcoming city in 2017 and continuing to advocate for more just, inclusive laws.