Indiana’s Flawed Religious Freedom Law

Abstract

On March 26, 2015, Indiana Governor Mike Pence signed into law Senate Bill 101 (“SB 101”), also known as the Religious Freedom Restoration Act (“RFRA” or the “Act”). Its central provision is that a “governmental entity” may not substantially burden a person’s religious exercise unless it demonstrates that imposing that burden on the person would further a compelling governmental interest using the least restrictive means. The Act provides a framework for balancing government interests with those of religious persons and tilts the scale towards the latter. It defines the term “governmental entity” to include both government officials and private parties deemed to be “acting under the color of law.”

The Act was hugely controversial. Most on this controversy focused on how the Act would affect the interests of lesbian, gay, bisexual, and transgender (LGBT) individuals. Many expressed concern over the Act’s potential impact on local laws designed to protect LGBT individuals from discrimination. The controversy also drew attention to the fact that Indiana’s state-level civil rights law does not ban discrimination based on sexual orientation and gender identity. The state legislature subsequently enacted Senate Bill 50 (“SB 50”), also known as “the Fix,” which provides that the Act may not be used to discriminate against LGBT individuals.

There has been relatively little analysis of what the Act generally requires and how it applies outside the context of anti-discrimination laws. This Article helps fill this gap. Part I examines the Act’s basic framework and requirements by illustrating how it would apply to a relatively simple dispute between government officials and persons seeking an exemption from a neutral and generally applicable rule. Part II explores the Act’s problematic application to litigation involving solely private parties (“private litigation”). It considers different ways the Act may extend its reach to private litigation, including the expansive and complex usage of the term “governmental entity.” It shows how the Act’s inconsistent use of terminology makes it difficult to understand how it operates in this context. The Act’s ultimate effect is to make it harder for parties in private litigation to win lawsuits whose success would substantially burden an opposing party’s exercise.

The Article concludes by arguing that the Act should not apply to private litigation. The Act is best understood as a means to combat the perceived indifference of government officials to how their uniform enforcement of rules may burden some citizens’ exercise of religion. The Act is inapt in the context of private litigation where citizens seek to vindicate their personal interests in ways that incidentally burden an opposing party’s exercise. It is unfair to task private citizens with demonstrating the government’s interest in the success of their otherwise valid and meritorious claims.

Keywords: Religious Freedom Restoration Act, RFRA, Indiana, law and religion, religious liberty, religious freedom, free exercise of religion

JEL Classification: J7