Indiana's RFRA--My Opinion, and a Little Relevant History

I didn't start this blog to advertise my personal views, and I certainly don't intend to move in that direction. But there's no ignoring the elephant in the room. The whole country is talking about this law, and as a lawyer and a legal instructor, it seems oddly conspicuous if I don't say something.

In any event, I wrote a short piece intended as a Letter to the Editor of the Journal & Courier, but it was rejected for length. I posted it on Facebook, with much positive feedback (that's what friends are for), and was asked by several students to post it here since I won't Facebook befriend students. (Ask again on graduation day.)

Again, this is solely my view as a private person (albeit one with a law degree). I will not discuss this during class time, but would be happy to do so outside of class. And--outside of class, unless it's relevant to what we're doing that day--I look forward to hearing your thoughts.

   In the early 1990s, several Native Americans were fired from their jobs for using peyote. Peyote is used in religious rituals among some Native Americans. These same people were then denied unemployment benefits by the government because their termination was determined to be “for cause.” They appealed, and pursued that appeal all the way to the Supreme Court, which ruled in Employment Division v. Smith that even though their use of peyote was part of their religious practice, their termination was, indeed, for cause, and they could be denied unemployment benefits.

    Religious groups of all stripes throughout the country were troubled by the implications of this ruling, and justifiably so. The idea that people could have their government benefits stripped from them as a result of their private religious practices was chilling. 

    In response to that ruling, a broad federation of religious groups, breathtaking in scope, worked together to craft the federal Religious Freedom Restoration Act in 1993.

    In 2015, Indiana was faced with the prospect that same-sex marriage would be legalized. In response to that, the idea was floated that incorporating the language of the federal RFRA into Indiana's state laws would somehow allow people with religious objections to avoid doing business with others based on the content of the private lives—actual or assumed—of those others. The idea was trumpeted loudly and often to a narrow band of religions who object to homosexuality on religious grounds. No effort was made to include other views, or to inquire whether language that reacted to one situation 22 years ago might sound different when it was used to react to a very different situation today.

    Yes, it is essentially the same language. But it is not the same law. 

 

    And it is jaw-droppingly disingenuous for our governor and representatives to declare that they had no idea that anyone would take passage of the state RFRA as an attempt to legalize discrimination. It is an insult to our collective intelligence.

    And yet, what else would we expect in a state that registered the lowest rate of voter participation in the country in last year's mid-term elections? Where was all of the energy and the anger and the ideas about how this state should be run on election day? Where?

    So now Indiana stands in the cross-hairs of numerous business, religious, and political groups, and all we can think of to do is to point fingers at one another, or offer weak and disingenuous excuses for our actions.

    Shame on all of you. Shame on all of us.

    Shame on all of us.