The legislative “fix” for the Indiana Religious Freedom Restoration Act (RFRA) should have been rejected, not passed by the Indiana Legislature and signed into law by Gov. Mike Pence, as it was on Thursday. The original law did not need to be fixed. The changes distort the law to predetermine (or, should I say, “fix”) the winners and losers in advance in cases when people get sued under discrimination laws. The thinking behind the Indiana “fix” wrongly assumes that discrimination laws are never used improperly to punish dissenters or to force them to communicate messages they don’t approve.
The original Indiana RFRA passed earlier in the week protects people, because it allows people to raise their religious beliefs as a defense—a defense that the court would weigh against the particular state interest at issue in a specific case by using the state RFRA’s four-part test. This four-part test filters legitimate religious claims from phony or extreme ones, granting exemptions only to those claims that pass all four parts. What the original Indiana RFRA (the one enacted before the “fix”) did not do was grant the religious believer total immunity in all conflicts with state law. It, like all the other state RFRAs and the federal RFRA, does not allow a person to get away with anything simply by saying, “My religion made me do it.”
The Indiana “fix” ruinously distorts the workings of the four-part test by prohibiting business owners from invoking their rights under the Indiana RFRA when someone sues the business for discrimination based on sexual orientation, gender identity, religion, etc. No one explained why every application of a nondiscrimination law should always prevail over a claim of religious conscience. Surely, the factual context of what happened in a particular case, what exactly was the charge of discrimination, and what religious belief the defendant asserts would make a difference as to who should prevail.
Not anymore. The Indiana “fix” means that, rather than courts weighing the religious complaint in light of the facts of the case, the new amendment stacks the deck in favor of the person filing the discrimination lawsuit. This new change unjustly deprives citizens their day in court, denies the claim for freedom a fair hearing, by rigging the system in advance. What kind of religious liberty is that? (Read more from “Indiana’s ‘Fix’ Gives Religious-Liberty Haters A New Weapon” HERE)