Echoing the incredulous police chief in the movie Casablanca, proponents of the Religious Freedom Restoration Act say they are shocked to discover that anyone objects to protecting religious believers from government oppression. As the nuclear reaction that has engulfed us for the past week continues to burn, one wonders how so many legislators got this one so horribly wrong. What did Republicans know about the constitutional implications of RFRA before they approved it?
The parties in the House both received entirely different analyses from nationally respected legal scholars. The first letter, written on University of Virginia Law School letterhead, says that religious rights are insufficiently protected under Indiana law. Yet RFRA will not result in discrimination because government almost never permits civil rights to take a back seat to religious rights. The only relevant context is a 1990 U.S. Supreme Court’s decision that said Native Americans who use peyote in their religious rituals could be fired from their jobs. In reply, Congress passed the federal Religious Freedom Restoration Act in 1993.
Existing law puts the burden of proving religious objections on the religious practitioner rather than requiring the government to demonstrate a compelling interest in overriding that religious belief. RFRA reverses that burden of proof and gives all corporations the right to invoke religious belief. Section 10, giving religious believers remedies and attorneys’ fees when they sue, comes straight from the Virginia letter. These provisions cannot be found in any other state or federal law.
Still, supporters of the law refuse to acknowledge that the bill radically expands corporate religious rights. Nor do they concede that the RFRA gives anyone (including corporations, businesses, and employers) the right to discriminate against LGBTQ citizens, who are not covered by the state’s civil rights laws.
The other letter argues that the “finely tuned harmony between religious liberty and other rights secured by the Indiana Constitution and laws” should be maintained. SB101 “would amount to an over-correction” that would elevate religious rights over other rights. Fundamental constitutional rights do sometimes come into conflict, but courts and legislatures seek to avoid permitting one kind of right to trump another. The second letter concludes that RFRA “will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests.”
By rejecting attempts to make the bill more balanced, the Republicans acted with admirable yet destructive discipline. It is simply impossible for them to claim they had no idea of the consequences of voting yes. We are not the same country that produced the federal RFRA and “don’t ask, don’t tell.” DADT was abolished in 2011; many states have since endorsed marriage equality. House Republicans relied on legal opinion that portrayed religious liberty as under attack. Hoosiers know that it is not.
This is a classic case of winning the battle and losing the war. A balanced approach to civil rights should prevail in any RFRA “fix.” Perhaps we can all agree on one thing: Governor Pence’s Captain Renault impersonation needs work.
About the Author: Woeste is a research professor of legal history at the American Bar Foundation in Chicago, specializing in the history of civil rights, religion, and discrimination. She lives in West Lafayette with her husband and four children.
Op-eds are guest editorials from leaders in the community and beyond. South Bend Voice does not necessarily agree with the views expressed.
Image Credit: Gage Skidmore, flickr