The right of each person to practice his or her religious faith is one of America’s foundational principles. In fact, the Framers of the Constitution thought religious liberty was so important that they made it the first right guaranteed in the Bill of Rights.
Congress reiterated the importance of religious liberty when they passed the federal Religious Freedom Restoration Act (RFRA) in 1993. The federal RFRA that is still in effect today passed the U.S. House of Representatives unanimously, passed the U.S. Senate by a vote of 97-3 and was signed into law by President Bill Clinton.
Many people are aware of the federal RFRA because it was the basis for last year’s Supreme Court opinion holding that Hobby Lobby could not be forced by Obamacare to provide its employees with insurance coverage for abortion-inducing drugs.
In an effort to protect Hoosiers’ religious liberty, the Indiana General Assembly passed the Indiana Religious Freedom Restoration Act which was signed into law by Gov. Mike Pence on March 26. We felt such legislation was necessary as a result of a Supreme Court ruling which says that the federal RFRA cannot apply to state and local laws because of the separation of powers between the federal government and the states.
To be clear, the Indiana RFRA does one thing: It establishes a legal test for judges to use when deciding whether or not a government act goes too far in burdening someone’s free exercise of religion. Specifically, the RFRA test says that government cannot “substantially burden” religious freedom unless the action furthers “a compelling governmental interest” using “the least restrictive means” possible. The shorthand name for this legal test is “strict scrutiny.”
The strict scrutiny test in Indiana’s RFRA is copied from the federal RFRA and the RFRA laws of 19 other states. In addition to the 19 states with RFRA laws, at least 11 additional states apply strict scrutiny to laws that burden religious freedom through their constitutions.
Unfortunately, this law has been mischaracterized by opponents as a method to legalize discrimination, but that claim is totally unfounded. Some people have begun opposing RFRA laws because they think RFRA might allow discrimination against the LGBT community. Despite these claims, there is no evidence that a RFRA law will allow discrimination. In fact, the federal RFRA has been law for more than 20 years, and states began passing their own RFRA’s in the 1990s. In all that time, there has never been a single case where a RFRA law has led to discrimination.
In an effort to further clarify the law’s intent, members of the General Assembly recently passed follow-up legislation that makes it crystal clear that the RFRA will not permit discrimination against anyone in our state.
The result of our legislative action on Indiana’s RFRA is heightened protection of religious liberty, with strong guarantees that the bill can’t be used to discriminate. Hoosiers value both religious faith and inclusiveness – these are not contradictory values.
As always, I welcome your input and questions on this issue or anything else being considered by the General Assembly at Senator.Long@iga.in.gov or 800-382-9467.
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