By State Sen. Erin Houchin (R-Salem)
Recently, legislation to protect Hoosiers’ religious liberty from government infringement was passed by the General Assembly and signed into law by Gov. Mike Pence. This legislation – Senate Enrolled Act 101– has been widely mischaracterized by its opponents. As a supporter of the bill and a strong proponent of religious freedom, I want to clarify the intent of this legislation.
Opponents of the law claim it creates a “license to discriminate.” This claim is unfounded. In fact, this law, commonly referred to as the Religious Freedom Restoration Act (RFRA), is aimed at preventing government from trampling on the free exercise of religion in Indiana.
It does this by establishing a strict test for courts to use when reviewing state and local government actions that may impact religious freedom. Specifically, the RFRA says that the government of Indiana (including local governments) cannot “substantially burden” the exercise of religion unless the action furthers a “compelling governmental interest” using “the least restrictive means.”
The strict scrutiny test in Indiana’s RFRA is copied from the federal RFRA passed by Congress in 1993 and the RFRA laws of 19 other states. In addition to the 19 states with RFRA laws, at least 11 additional states apply strict scrutiny to laws that burden religious freedom through their constitutions. In the many years that federal and state courts have been interpreting RFRA laws, opponents cannot point to a single case in which a court has ruled that the RFRA allows discrimination based on sexual orientation.
The federal RFRA that’s still in effect today passed the U.S. House unanimously, passed the U.S. Senate 97-3, and was enthusiastically signed into law by President Clinton. The bipartisan respect for religious freedom has also carried over to the votes for most state-level RFRA’s. For example, when President Obama was an Illinois State Senator in 1998, he voted for Illinois’ RFRA.
The impetus for Indiana to pass its own RFRA is a growing fear among Hoosiers that government doesn’t adequately respect religious freedom. The Hobby Lobby case was addressed last year by the U.S. Supreme Court and helped shine a light about uncertainties on how these types of cases would be decided in Indiana.
While Hoosiers respect the religious rights of our neighbors and loved ones, it’s unclear if Indiana’s courts would apply the same level of protection for religious freedom that citizens in most of the country already enjoy. Indiana’s RFRA clarifies this issue for Indiana courts by bringing our state in line with federal courts and most states.
To make the intent of this law abundantly clear, the General Assembly enacted follow-up legislation this week clarifying that the RFRA cannot be used to discriminate. Senate Bill 50 would establish specific antidiscrimination safeguards that prohibit the refusal of services, facilities, use of public accommodations, goods, employment or housing to the general public.
It bears repeating that there is no history of RFRA laws leading to discrimination based on sexual orientation, and there’s no reason to think Indiana’s RFRA will be any different. It is a common sense measure to make sure Hoosiers’ constitutional rights receive the fullest protection possible.