Indiana State Capitol ... the scene of the country's most recent 'religious freedom' bill
Indiana State Capitol | Photo via Wikimedia

On Thursday, Indiana Gov. Mike Pence signed into law a so-called “religious freedom” bill which gives Hoosiers the right to challenge any state or local law which “substantially burdens” their exercise of religion. This new law has been highly controversial, and major conventions, churches, and even the NCAA have threatened to abandon Indiana upon its enactment.

This new law has been criticized as a “license to discriminate” that “allows biz to reject gays.” Critics view it as a way to skirt anti-discrimination laws and to target LGBT citizens for exclusion from employment, housing, and public accommodations. And smug Kentuckians have been quick to scoff at their northern neighbors, but Kentucky passed a similar law in 2013 (over the veto of Gov. Steve Beshear).

Lost in the outrage, however, are many important details, such as what the laws actually say, what they do, and the potential ways for opponents to fight them.

First, what does the Indiana law actually say? It says that “a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened” by a state or local law can receive a court order, an injunction, or even compensatory damages if the government fails to prove it has a “compelling governmental interest” for the challenged law and the law is “the least restrictive means of furthering” that interest.

Governor_Pence_Official_Headshot_high_Res
Indiana Gov. Mike Pence

In layman’s terms, that means any law which interferes with religious exercise must have a really good reason behind it and be as narrow as possible in its application.

For anyone familiar with constitutional law, “religious freedom” bills seem mostly redundant. After all, the First Amendment of the U.S. Constitution explicitly protects the free exercise of religious belief. As an enumerated constitutional right, any law which interferes with the free exercise of religion should already be subjected to the same test articulated by laws like Indiana’s: There must be a “compelling governmental interest” behind it and it must be “the least restrictive means of furthering” that interest.

So if the First Amendment already protects free exercise, why do we need state laws like this at all? A little history lesson may help.

The origin of such laws actually dates back to 1993, to a Supreme Court decision called Employment Division v. Smith. In Smith, the Court (led by conservative Justice Antonin Scalia) ruled that the state of Oregon could deny unemployment benefits to workers who were fired because they used the drug peyote, even though they used it as part of a regular native American religious practice. Why? Because, at the time, the Court’s decisions had “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” In other words, if a state law applies to everyone – such as a criminal law against drug use or a civil rights law against discrimination – it can’t be said to be interfering with any particular religious belief.

The Smith case lit a fire underneath Congress. By November 1993, they passed a bill called the Religious Freedom Restoration Act (RFRA), which nullified the “general applicability” rule. Congress effectively turned back the clock on free exercise jurisprudence to 1963, to a case called Sherbert v. Verner (which used the “substantial burden,” “compelling interest” and “least restrictive means” standards).

Since then, states have enacted their own laws modeled after the RFRA (which only limits the federal government), usually at the behest of conservative and religious lobbying groups. And the RFRA itself has been in the news lately, such as when the Supreme Court (Justice Scalia included) ruled that a corporation’s free exercise of religion was infringed by the Affordable Care Act.

Critics argue the real purpose of “religious freedom” laws is to carve an exception out of anti-discrimination protections, allowing bigoted business owners to exclude gays and lesbians from their services. But in Indiana business owners can already discriminate against gays and lesbians with no fear of legal punishment for doing so. The Indiana Civil Rights Act doesn’t list sexual orientation as a protected classification. The same is true in Kentucky.

However, some cities and counties in Indiana (and Kentucky) have passed so-called “fairness” ordinances, which allow local governments to fine businesses that discriminate against gays and lesbians. Cities like Indianapolis, Bloomington, New Albany, and Evansville all have passed such ordinances, and there are county-wide protections in Marion and Monroe counties.

The new “religious freedom” law will allow discriminatory business owners to contest fines and sue for injunctions and damages in those cities and counties. So in that way, critics are right. The laws may enable discrimination.

That said, a “religious freedom” law is not a get-out-trouble free card. A person must still prove that the challenged law or ordinance has substantially burdened their religious exercise. And the government still gets the chance to cite a compelling justification and show the challenged law applies as narrowly as possible.

None of the new state “religious freedom” laws actually carve out a blanket exception for anti-gay discrimination. Neither the Indiana law nor the Kentucky law are like the Colorado law struck down in 1996 by the U.S. Supreme Court in Romer v. Evans, which explicitly excluded LGBT people from legal protection. Modern “religious freedom” bills are more subtle. If they are designed to allow discrimination, they do so less blatantly.

But let’s be honest. The purpose of these laws is to enable discrimination. Though neither Indiana nor Kentucky consider sexual orientation to be a protected classification under their civil rights statues, there is a growing public demand for that to happen, and local fairness ordinances are popping up even in tiny towns like Vicco, Ky. With many people expecting the Supreme Court to strike down same-sex marriage bans nationwide in June and growing public sentiment in favor of equality, conservative and religious proponents of the “religious freedom” laws see the writing on the wall. They fear there will be fewer legal ways for them to shun people they view as undesirable or sinful.

So how can opponents of discrimination defeat “religious freedom” laws? There is no easy answer, unfortunately. Laws like RFRA already have been upheld as generally constitutional. They codify a right already present in the First Amendment and don’t single out any classifications of people in their text or application. And limiting the classifications protected by civil rights laws is generally within the discretion of a legislature to do, since civil rights laws themselves are products of the legislative branch.

The Indiana and Kentucky civil rights acts currently omit sexual orientation from protection and there’s no constitutional compulsion to change that. Adding protected classifications is subject to the whim of the voters and those they elect to represent them.

Democracy is the key. Unlike discriminatory marriage bans, “religious freedom” laws like those in Indiana and Kentucky are best defeated at the ballot box. For this reason and many others, state elections matter. Individuals, businesses, and lobbying groups must pressure legislators not to pass and governors not to sign such laws, and vote them out of office when they do.

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Joe Dunman
Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.