INDIANAPOLIS — The changes Indiana lawmakers made to the state Religious Freedom Restoration Act “raise several concerns about the protection of religious freedom for Indiana’s citizens and religious institutions,” the state’s Catholic conference said.
The new language “may undermine religious freedom,” it said, because the terms “religious function” and “nonprofit religious organization” are not clearly defined in wording related to religious freedom protections.
The conference, which is the public policy arm of the state’s Catholic bishops, issued a statement April 2, the day that Gov. Mike Pence approved changes to the RFRA measure he had signed into law March 26. The law goes into effect July 1.
The law met with a firestorm of protest by gay rights groups and others who said some of its language was vague and could be interpreted to allow individuals and private companies to discriminate against gay people “on the very broad basis of ‘any exercise of religion.'”
Opponents called for a boycott of the state, and many business leaders criticized the law.
Pence stood behind the law, saying if the bill “legalized discrimination in any way in Indiana, I would have vetoed it. He attributed the vocal opposition to a combination of what he called “mischaracterization,” “misunderstanding” and “sloppy reporting” about the wording of the law.
But on March 31, he asked state lawmakers to send him some clarifications to make “it clear that this law does not give businesses the right to deny services to anyone.”
The new wording says in part that the law does not authorize a provider to refuse to offer accommodations, goods and services on the basis of race, gender, age, disability and sexual orientation.
It also says the term “provider” does not include a church or other nonprofit religious organization, nor does it apply to “a rabbi, priest, preacher, minister, pastor or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.”
The Indiana Catholic Conference in its statement said that it continues to support the original bill, saying “it strikes the proper balance that has worked well in the federal RFRA for more than 20 years.”
“While well intentioned, the changes may undermine religious freedom. What’s the definition or limitation of a ‘religious function’? Are professionals such as physicians included? Does a ‘nonprofit religious organization’ include hospitals?” it asked.
“We are committed to working in good faith with lawmakers to safeguard the rights of people of all faiths to practice their religion without undue burden from the government and to uphold the God-given dignity of all people of this state,” the conference added.
A day before Pence approved the changes, Indiana’s Catholic bishops urged “mutual respect” be shown in the RFRA debate “to ensure that no one in Indiana will face discrimination whether it is for their sexual orientation or for living their religious beliefs.”
The measure, the noted, seemed “to have divided the people of our state like few other issues in recent memory.”
The 1993 federal law says that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.” It does not apply to the states, so with Indiana and now Arkansas, 20 states that have passed such legislation.
Among opponents of the Indiana law as signed by Pence initially was trial lawyer Matt Anderson, who called his state’s measure a “vague and just a poorly written law” that he said could be applied to disputes between private citizens. “You can defend yourself in a criminal or civil action on the very broad basis of ‘any exercise of religion,'” which is how it could be used to discriminate against gays and others, he argued.
Richard Garnett, a law professor at the University of Notre Dame in northern Indiana, in an opinion column in the March 26 issue of the South Bend Tribune, called the state’s RFRA a “moderate measure” modeled after the federal law and those of several other states and said it “does not give anyone a ‘license to discriminate.'”
Garnett noted that the more than 20 years of history of the applying of RFRA statutes to specific cases shows that courts across the country “have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections.”
He said that religious freedom laws have helped people of a broad variety of faiths.
“In practice, over the last two decades or so, Religious Freedom Restoration acts have been used not to excuse illegal discrimination or harmful behavior but instead to secure humane accommodations,” Garnett said, “such as allowing members of a small Brazilian church to possess plants that are necessary to make sacramental tea, or preventing the government from firing a Rastafarian with a traditional haircut, or respecting a family’s religious objections to an autopsy of their loved one.”
In floor debate when the state House took up the measure, several members spoke out against it, including Democratic Rep. Ed Delaney of Indianapolis, who called the bill “futile and destructive” and said he felt it would allow discrimination.
Democratic Reps. Vernon Smith of Gary and Cherrish Pryor of Indianapolis, who are African-Americans, said even though they were devout Christians, they opposed the bill because they also believed it could potentially cause discrimination.
Professor Daniel Conkle of Indiana University’s Maurer School of Law testified in favor of the legislation during House and Senate hearings, and reiterated his position in an opinion column in The Indianapolis Star. He is a constitutional law expert who supports gay rights and same-sex marriage.
The RFRA legislation had “little to do with same-sex marriage and everything to do with religious freedom,” he said, adding that “most religious freedom claims have nothing to do with same-sex marriage or discrimination.”
Conkle said in his column the Indiana law is “anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.” According to Conkle, 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 RFRA legislation.
Contributing to this story were Sean Gallagaher and Brigid Curtis Ayer.