Indiana Religous Freedom Act- Help for Families of Faith

What does the Indiana Act actually do? It sets a standard that state government must follow when dealing with cases that involve religious freedom.

The government must demonstrate that it has a "compelling interest" to get involved, and then, if a remedy is called for, it must use the "least restrictive" solution.  This means that private actors, for example, such as a same-sex couple or a florist, or farmer, or cake baker or photographer, are free to exercise religious freedom in supporting and participating in a same-sex wedding or not.  It allows families of faith to live out their faith. If the state government wants to bring a lawsuit on the matter it must have a compelling interest to do so, such as protection against racial discrimination, or religious discrimination, and its remedy must be a least restrictive measure.  This is essentially a 1981 law called the Religious Freedom Restoration Act, which has been adopted in similar form by nearly half the states in the nation.  UCLA Law Prof. Eugene Volokh at his blog "The Volokh Conspiracy" outlined well the Religious Freedom Restoration Act - or RFRA - with his posts at http://volokh.com/?s=RFRA&submit=.  Maggie Gallagher of the Institute for Marriage and Public Policy posted her thoughts on the political implications of state RFRAs at ThePulse2016.com

Indiana Gov. Mike Pence said, "This is not about legalizing discrimination, it is about restricting the government's ability to intrude on the religious liberty of our citizens."  View the text of the Indiana legislation at https://iga.in.gov/legislative/2015/bills/senate/101#digest-heading.  The Arkansas legislature has just passed a similar bill.  These laws are simply about allowing families of faith to live full lives in the exercise of their religious freedom. 

Family restoration is supported by religious freedom foundations.




1 comment:

  1. One of the major problems driving this debate (if you can call it that) is the failure to distinguish between a proper theology of conscience (i.e. “Request”) versus invidious discrimination (i.e. ”Identity”). The former rests on the premise that certain acts can be sinful if by its direct taking, advance or approve, the sinful acts of another (see Romans 1:32). The latter rests on the premise that a certain act can be sinful if by its direct taking a person, degrades or demeans, the very essence or dignity of a person. The difference is really between identity and request and RFRA’s intended purpose is to allow the former, while disallowing (by disallowing I mean giving no real hope of prevailing on claim) the latter. RFRA is a prophylactic rule that is supposed to regulate the conduct of the believer in a way that requires a developed theology of conscience (see especially Romans 14; 1 Corinthians 8) as well as preventing unwarranted and unbiblical identity discrimination (see especially those examples where Jesus associated with the outcasts without compromising truth, e.g., Matthew 8:1-3; Mark 2:13-17; Luke 7:39 John 4:1-26).
    Unfortunately, this nuance is often lost on lazy reporter whose failure to understand causes them to misinform the public. The comments of Douglas Laycock are profoundly discerning:

    “Part of the problem is conservative legislators and activists promising the base that a state RFRA will protect them against gay-rights laws. That's just pandering; there is no basis in experience to think that. But the gay-rights side has piled on with the charge that these laws are licenses to discriminate. So both sides are misleading the public. And the academics who have actually studied these laws and know what they do can't get anyone to pay attention over the din.”

    However irresponsible the reporting has been after recent events, there are three concerns I have for the future:

    First, the major concerns from gay rights activists who try to distinguish Indiana’s RFRA from other State RFRA’s is that Indiana doesn't recognize sexual orientation as a protected class. Their concern is that now with RFRA, public employers will be embolden to reject LGBT customers exclusively on identity grounds and without robust anti-discrimination laws, the LGBT community would have no legal recourse if they are driven by the need to litigate. This is a legitimate concern and I would support carefully worded state legislation in order to protect LGBT-identity discrimination, but not request discrimination, since the latter amounts to potential violations of religion and should only be prescribed after RFRA scrutiny.

    Second, yesterday (March 30), the first church of cannabis was approved after Indiana’s religious freedom law was passed. I won’t go into details, but under RFRA it seems that most made up religions will have an opportunity to register their churches under RFRA protection, unless they somehow fail to show sincerity or a substantial burden. Given how trivial some of these religions can be, it would be hard to show a compelling state interest in denying their registration. The problem with allowing the influx of fake religions is the compounding difficulty that Americans will have distinguishing between true and false religions and may simply give up and relativize religion as an invention of man.

    Finally, it’s likely that other states will have trouble passing similar RFRA statutes, e.g., Arkansas and Georgia. The practical solution for legislators and public officials is to help citizens distinguish between identity and request discrimination and show that RFRA is meant to protect only the latter.


    1. Douglas Laycock (UVA) http://m.weeklystandard.com/blogs/uva-law-prof-who-supports-gay-marriage-explains-why-he-supports-indianas-religious-freedom-law_902928.html?nopager=1.
    2. Josh Blackman http://www.nationalreview.com/article/416160/indiana-protecting-discrimination-josh-blackman.