Andrew Napolitano: Indiana's RFRA Is Constitutionally Unsound

Indiana is free to look the other way in the face of discrimination based on sexual orientation but not to encourage it or to make it lawful.



The Indiana Religious Freedom Restoration Act (RFRA) of 2015 is constitutionally infirm and legally troublesome, argues Andrew Napolitano.

Since 1997, most states have added sexual orientation to the litany of prohibited bases for discrimination in public accommodations and housing. Indiana has not done so. Yet its RFRA, signed into law last week, provides a "my religion made me do it" defense to allegations of discrimination based on sexual orientation.

There's a belief and fear that the statute is an affirmative attempt to provide a lawful basis for such discrimination. Such an attempt would surely run afoul of prevoius Supreme Court rulings, notes Napolitano. And its judicial enforcement would require judges to determine the centrality and sincerity of a person's claimed religious practices to the core teachings of his religion—a practice prohibited by the Free Exercise Clause.