On the Indiana (and Arkansas) “Religious Freedom Restoration Act”

What an eventful week! To recap, Indiana passed a “Religious Freedom Restoration Act”, then a bunch of people spoke out against it/boycotted the state, and now the governor says he wants it to be “clarified” that, in his words:

I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that his law does not give business a right to deny services to anyone.

Meanwhile, the governor of Arkansas changed course and said he would not sign a similar bill in Arkansas without changes. (Actually, I read somewhere the text of the bill is exactly the same as Indiana’s)

I’ve read some commentary wondering what the big deal is, since there’s a federal law passed in 1993 with the same name. I’ve also read a number of articles (at The Atlantic and The New York Times) saying it’s different. So I decided to look at the text of the bill to try to figure it out.

And, um, it turns out bills are hard to read. Here, you try! I think the key point is in Sec 7:

As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

(bolding is mine) and the meat of the bill is in Sec 8:

a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

So, the government can’t burden a company’s (or even an individual in a company’s?) exercise of religion, even if the law is written in a religion-neutral way, unless there’s a compelling government interest.

The tricky part is – what does that mean? If David and I walk into a hotel and the clerk doesn’t want to give us a room together, is forcing him to do so a compelling governmental interest? (note that the Civil Rights Act of 1964 Title II outlaws this scenario for “race, color, religion, or national origin”) I don’t know, and I’m not sure how you could settle this and thousands of other scenarios without court cases.

It also seems pretty clear that the Indiana governor is wrong – the law certainly could be used as a defense for businesses who don’t want to serve certain people, and why would this law exist if not?

(I’m deliberately avoiding the “forcing vendors to be involved in same-sex weddings” topic – as I’ve said before that’s a trickier case and I’m not sure how I feel about it. But these laws are very broadly written. If the authors had wanted to limit the scope of the law to weddings they certainly could have…)

I know the libertarian response to laws like this is “just allow businesses to do whatever, and let the free market sort it out”. Certainly in some cases government regulation can go too far, but if we’re talking about common sense and decency at a limited cost I think the tradeoff is worth it to have a better society. It’s like why we have health inspectors for restaurants – sure, we could let the free market figure out where people are getting sick after eating, but…why would you want that?

Finally, I’m very impressed that public opinion has managed to make something happen in Indiana and Arkansas. Thanks, allies!

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