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Indiana Legislature in a Hurry to Find a Solution for a Problem that Does Not Exist

On Behalf of | Mar 5, 2015 | Firm News

Legislature in a Hurry to Find Solution For Problem that Does Not Exit

                “In our rushing, bulls in china shops, we break our own lives.”
― Ann Voskamp

                Indiana’s Religious Freedom Restoration Act (RFRA) recently passed in the Indiana State Senate and has been in the news frequently.  The articles opposing this legislation focus on a variety of issues, such as the concern that this Act is primarily intended to permit the discrimination against members of the LGBTQ community as well as questioning the necessity of such legislation.  While we believe that the primary issue should be how do we prevent such discrimination in Indiana, another issue which must be addressed is the potential for unintended consequences stemming from the RFRA.

            The RFRA is extremely broad.  By its language, this Act would prevent a person, company, or other legal entity from being compelled to take action contrary to their religion.  The entity’s exercise of religion pertains to any “sincerely held religious belief, regardless of whether the religious belief is compulsory or central to a larger system of religious belief.”  It is noteworthy that the belief need not be a universally accepted belief or practice by the religion, but rather at the individual level.  In effect, this Act permits any person or entity to discriminate so long as it is based upon their individual religious belief.

            The RFRA also creates an extremely high standard in order for state action which “burdens” an entity’s religious belief to be permissible.  The state action must be “essential to further a compelling governmental interest; and the least restrictive means of furthering the compelling governmental interest.”  Not only must there be a compelling interest, but by the language of this Act there must be no other method to achieve such an interest.

            The RFRA goes well beyond providing for religious freedom (a right already protected by the United States and Indiana constitutions) and creates the potential to permit discrimination.  Conceivably, a person or entity could discriminate based on gender, race, religion, etc. so long as such discrimination is “substantially motivated by [their] sincerely held religious belief.”  This could lead to many unintended consequences and is not simply limited to certain Christian religious beliefs.  For example, under the RFRA it is possible that a business owner could prevent customers from saying grace or praying, prevent customers from wearing religious apparel and jewelry, and ban customers from bringing the Bible or any other religious texts into their store.  The RFRA also raises questions of whether a court can grant a divorce to a married couple over one party’s religious objection.  Further, the RFRA may create a right for individuals to be allowed to wear religious head coverings in their driver’s license photos.  Another unintended result of the RFRA could be the permitted use of marijuana, which could be used in certain religious ceremonies.

            Ironically, the RFRA, which supporters claim is necessary in response to the legalization of same-sex marriages, could also be used to legalize polygamy or marriages between first cousins.  The state adamantly fought against solemnizing and recognizing same-sex marriages, and one argument put forth was the concept of a “slippery slope” which could lead to polygamy.  However, polygamy and the marriage of first cousins are recognized practices by certain religions and this Act could in fact be used as support for legalizing such.

            What has been named the Indiana Religious Freedom Restoration Act raises many concerns.  Among these are that it is unnecessary to protect religious freedom and that its actual purpose is to permit discrimination in response to the legalization of same-sex marriage in Indiana.  In addition to these concerns of the opponents of the RFRA, the unintended consequences which could stem from the breadth of this Act are concerns that should be equally shared by those currently in support of this legislation. The bill does not exempt, and in fact includes criminal penalties.  There is no language that allows other statutes to supersede this proposed law.  The Legislature should step back, take a breath, and stop this legislation.