The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The enactment of a state religious freedom law in Indiana has provoked a firestorm of protest. Although the law is quite similar to those on the books in over a dozen other states, as well as the federal Religious Freedom Restoration Act (RFRA), some claim that the law authorizes discrimination against homosexuals and same-sex couples and trumps state-level nondiscrimination laws. According to Apple CEO Tim Cook, this law will "allow people to discriminate against their neighbors."
Are the claims made against the new Indiana law accurate? Not really. This law, like other RFRAs, merely requires that state laws meet a demanding, but hardly insurmountable, test before infringing upon the religious practice or conscience of religious believers. If the law imposes a substantial burden on religious belief, the law must yield unless the law serves a compelling state interest and is the least burdensome way to advance that interest. Here's more background on how these sorts of laws work.
RFRA laws are common, as shown by this map. Whether or not such laws are good policy, they are about accommodating religious belief, not authorizing discrimination.
Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest. Of course it's possible that a court in the future would reach a different conclusion, but there's no reason to think such a result is likely, and there is nothing about the Indiana law that makes it a particular threat in this regard. That is, such a court decision is just as possible in one of the other dozen-plus states that has had its own RFRA on the books for years or in one of the many other states that have equivalent protections for religious belief under their state constitutions.
The Indiana RFRA is not identical to every other RFRA, but the textual differences are not particularly material. Here, for instance, is a useful comparison of the Indiana law and the federal RFRA, as applied in the courts.
Do some RFRA supporters hope that such laws will allow individuals or companies to discriminate against homosexuals? Sure. But that is not what the text of the Indiana RFRA actually does. That's important because courts generally apply the text of the law as written over the unenacted intentions of some subset of a bill's supporters. Indeed, this debate is just one more example of why the textualist approach to statutory interpretation is a good idea. In any event, this debate is somewhat moot in Indiana because it doesn't have a state law barring sexual orientation discrimination on the books.
Are there any scenarios in which a state-level RFRA might result in an individual business owner denying service to a same-sex couple? Perhaps. The most likely scenario would be something like a religious wedding planner refusing to help plan a wedding that violates his or her religious beliefs. But even if such laws eventually allow this sort of thing, it is a far cry from, in Tim Cook's formulation, a general license to discriminate against one's neighbors.
To be clear, my point here is not to defend the enactment of state-level RFRAs. I am ambivalent about such laws and generally prefer the authorization of religious exemptions from generally applicable laws on a case-by-case basis. Whatever the wisdom of these RFRAs, it is important for the debate over such laws be based upon what these laws actually do.
UPDATE: Josh Blackman has more here.
More from Doug Laycock here.