Fixing the Indiana RFRA

First, let’s be clear on what a RFRA (Religious Freedom Restoration Act) does. Then we’ll get to how to fix Indiana’s.

The First Amendment contains two clauses with respect to religion: “Congress shall make no law [1] respecting an establishment of religion, or [2] prohibiting the free exercise thereof . . . .” RFRA (pronounced “riff-ra”) is a reaction to a U.S. Supreme Court case that changed the standard that we use to measure whether a law prohibits the free exercise of religion.

A. Sherbert, Smith, and RFRA

In Sherbert v. Verner, Sherbert was fired because she would not work on Saturday, the Sabbath day of her faith. She was denied unemployment because Sabbath worship was not considered “good cause” for declining employment. The U.S. Supreme Court held that this allowed government to attempt to control religious belief by withholding public benefits from those with minority religious beliefs. Perhaps more important than the decision was the test that the Court announced—a claim for a religious exemption from a law under the First Amendment must be granted if the burden on religion outweighed the importance of the state interest that would be harmed by granting the exemption or if there was a less restrictive means of accomplishing that interest.

In Employment Div. v. Smith, a law prohibiting possession of a controlled substance not prescribed by a medical practitioner was challenged after Smith was fired after using peyote as a part of a religious native American ceremony. In upholding the law, the Supreme Court noted that when a law applies to everyone equally, it may incidentally impact free exercise of religion and nevertheless remain valid. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, gave the outer limit to this holding—the court would not tolerate laws that appeared neutral, but targeted a particular religious belief. However, absent some sort of overt animus, it would be very difficult to prove this kind of targeting. If the city in Lukumi had not been so vocal in their condemnation of the church, they might have been able to pass an ordinance that would quietly outlaw the religious practice they sought to eliminate.

Smith upended the Sherbert test because it only required laws to be generally applicable and ignored the extent to which a minority religion’s beliefs were burdened. In response, Congress passed the federal Religious Freedom Restoration Act, which reinstated the Sherbert balancing test. The U.S. Supreme Court partially overturned the law holding that Congress had overstepped its bounds in imposing the law on the states (it does, however, remain in place for federal agencies). This left the door open for individual states to choose between the default rule—Smith’s general applicability test—and enacting a RFRA to reinstate Sherbert’s balancing test.

B. Indiana’s RFRA

Indiana has made some changes to the RFRAs passed in other states that expand the claims that can be brought under the law. They explicitly allow companies to claim religious exemptions (perhaps unnecessary after the Hobby Lobby case). It also allows burdened religious adherents to bring claims before the law has actually burdened them—they need only show that the law is likely to burden their religious practice.

Those concerns aside, the bill still boils down to a matter of which test a state prefers to use in deciding whether a person’s religious exercise has been unconstitutionally limited. Choosing the Sherbert test does not turn religious belief into a “trump card,” it requires us to balance the burden on religious adherence with the importance of the government interest. Indeed, most religious exemptions are denied even under Sherbert. Moreover, there is another body of case law that determines “sincerity” of the religious belief (this analysis would also apply to corporate entities).

C. Fixing the Problem

Many have suggested that an amendment to the law explicitly stating that civil rights always outweigh religious beliefs in certain contexts would give the certainty that citizens want. Utah’s legislature was able to strike an effective balance that satisfied both churches and civil rights activists. As Jonathan Rauch put it, “real civil rights protections, the kind that last, come not from laws or courts but from consensus.”

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