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Ind. bill affirms ‘inclusion’ of religious beliefs

INDIANAPOLIS, Ind. (BP) — Indiana’s leading Republican lawmakers pledged today (March 30) to introduce language to the state’s new religious freedom bill to clarify it does not allow discrimination against homosexuals, but seeks inclusion of religious diversity.

House Speaker Brian Bosma and Senate President Pro Tem David Long said at today’s press conference that backlash generated by the state’s Religious Freedom Restoration Act (RFRA), signed into law March 26, is based on a misrepresentation of the bill instead of its intent, design and effect.

“What we had hoped for with the bill was a message of inclusion, inclusion of all religious beliefs,” Bosma said in a video of the press conference posted on the Indianapolis Star website. “What instead has come out is a message of exclusion, and that was not the intent and hopefully not the effect. But to the extent it is, we’re intent on righting that.”

The law, effective July 1, “sets a standard of review for a court when issues of religious liberty and other rights collide due to government action,” Bosma said. Specifically, the bill prohibits a governmental entity from “substantially” burdening “a person’s exercise of religion” unless the entity “demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The law is the latest in a line of 20 religious freedom bills at the state level patterned after the 1993 federal Religious Freedom Restoration Act that passed with broad bipartisan support. Another 11 states have religious liberty safeguards that courts have interpreted as providing a comparable level of protection.

While Southern Baptists applaud the Indiana bill, vocal opponents have threatened economic, social and political backlash. Angie’s List CEO Bill Oesterle has said he will cancel the company’s planned $40 million expansion of its Indianapolis headquarters while Apple CEO Tim Cook opposed the law and others like it in a March 29 Washington Post editorial. Thousands of people protested the law in downtown Indianapolis March 28.

Southern Baptist Convention President Ronnie Floyd said religious liberty for everyone must always be preserved.

“It is one of the major core values of our country which must never be compromised or distorted in any way,” Floyd, pastor of Cross Church in northwest Arkansas, told Baptist Press. “The leaders of our nation must always lift high this founding principle of freedom for all Americans.”

Southern Baptist Ethics & Religious Liberty Commission President Russell Moore, who addressed the issue today on CNN, has called public conversation regarding the bill “the most uninformed and ignorant” he’s “seen in years.”

“When secularized or nominally religious people don’t understand religious motivation, then they are going to assume that, behind a concern for religious exercise, is some sinister agenda: usually one involving power or money,” Moore wrote at the ERLC website. “That sort of ignorance is not just naive. It leads to a breakdown of pluralism and liberal democracy. I shouldn’t have the power to mandate that a Jain caterer provide wild game for some Baptist church’s Duck Dynasty-themed ‘Beast Feast,’ just because I don’t understand their non-violent tenets toward all living creatures. I shouldn’t be allowed to require Catholic churches to use grape juice instead of wine just because I don’t understand transubstantiation.”

Law professor Michael J. DeBoer, also a Southeastern Baptist Theological Seminary and Liberty University graduate, likewise said opponents of the law are misinformed in a commentary at ERLC’s Canon and Culture website.

“Opponents of the legislation have not … displayed a commitment to accuracy in their communications about the legislation,” DeBoer, a licensed Indiana attorney who teaches at Faulker University in Alabama, wrote. “Instead, they have rallied opposition based upon misunderstanding and misinformation, upon fear and myth. As a consequence, many are uninformed and misinformed about the legislation. Undoubtedly, there are some who are knowingly distorting and mischaracterizing the legislation, and there are others who are motivated by a deep-seated hostility to faiths that are both believed privately and lived publicly.”

According to the Indiana Republican Caucus, the law “establishes a judicial standard of review which will provide the courts with clear guidance on how to resolve any matters that come forth surrounding religious freedom…. Indiana’s RFRA assures that our state courts follow the same reasoning that the federal courts and 30 other states follow when they weigh these issues.”

State versions of the law are fueled by Hobby Lobby’s 2014 victory over a provision of the Affordable Care Act regarding contraception, when the U.S. Supreme Court granted the Christian-owned company a victory based on the federal RFRA. Caucus member Long said Indiana’s law does not license discrimination.

“This law doesn’t do that, and it never has done that in the past,” Long, of the Indiana Senate, said at today’s press conference. “And it won’t be allowed to be used in Indiana that way either.”

Indiana Gov. Mike Pence signed the law in a private event with about 80 invited guests and listed the Affordable Care Act as evidence that the legislation is needed.

“One need look no further than the recent litigation concerning the Affordable Care Act. A private business and our own University of Notre Dame had to file lawsuits challenging provisions that required them to offer insurance coverage in violation of their religious views,” Pence said in a statement on his website. “Last year the Supreme Court of the United States upheld religious liberty in the Hobby Lobby case based on the federal Religious Freedom Restoration Act, but that act does not apply to individual states or local government action. … In order to ensure that religious liberty is fully protected under Indiana law, this year our General Assembly joined those 30 states and the federal government to enshrine these principles in Indiana law, and I fully support that action.”

The bill does not mention sexual orientation, but opponents have expressed concern that it might be used to deny services to homosexuals based on religious reasons.

The full text of the Indiana RFRA is posted is below this story.


Text of Indiana Religious Freedom Restoration Act

Chapter 9. Religious Freedom Restoration
Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.
Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.
Sec. 3. (a) The following definitions apply throughout this section: (1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.
Sec. 4. As used in this chapter, “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.
Sec. 7. As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.
Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case, the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.
Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.