Are religious freedom restoration laws really a license to discriminate?

Posted at 10:56 PM, Mar 31, 2015
and last updated 2015-03-31 23:15:28-04

As the debate over Indiana's recently enacted Religious Freedom Restoration Act (RFRA) continues, FOX 17 is taking a closer look at the history of RFRA laws across the country.

In the wake of the firestorm in response to the law, Indiana's governor and lawmakers have since vowed to 'fix it.'

While the RFRA passed in Indiana provides a defense for people accused of discrimination, the ultimate ruling is still up to a judge's discretion in court.

“It’s not an absolute defense, that’s why people kind of overstate it when they say it’s a ‘license to discriminate,’" said Curt Benson, a Cooley Law School professor.  "It remains to be seen because we’re not sure how the courts are going to start ruling on these cases.”

Benson, who has studied Indiana's RFRA law as well as other similar laws enacted in states across the country and the federal statute, said religious freedom laws have been around since 1993, when then-president Bill Clinton passed federal legislation with bi-partisan support, which included the American Civil Liberties Union.

The original intent of the law was to protect minority religions from the government trampling on their beliefs, Benson said. The law was in response to a Supreme Court decision that ruled Native Americans weren't exempt from anti-drug laws barring the use of peyote, even for religious ceremonies. RFRA provided an opportunity to defend religious beliefs in court.

“If you take the emotion of same-sex issue out of it, the law is a pretty decent law," Benson said. "It’s very workable, it protects religious people while at the same time protecting society as a whole.”

But opponents of such laws, including the ACLU argue the law hasn't lived up to its original intent, citing Indiana's law as opening yet another opportunity to discriminate, rather than protect minorities.

“Early on, this was a reaction to minority religions," said Marc Allen, with the West Michigan chapter of the ACLU. "But now instead of seeing it used as a shield to keep the government from trampling on religious rights, we’re seeing it used as a sword for individuals to try to attack anti-discrimination laws.”

Indiana joins 19 other states since 1997 that have passed religious freedom protection laws. But Indiana's comes at an arguably pivotal time in the gay rights debate as the U.S. Supreme Court is expected to hear a case on the constitutionality of same-sex marriage bans in April.

“To a certain extent, it’s just timing," Benson said.

“Indiana says… 'the federal government’s had this law for 20 years, why are you jumping on us?' And the response is 'you didn’t seem to think you needed it for 20 years, now suddenly on the brink of this decision of same-sex marriage, suddenly you think you need this law?'”

Benson said Indiana's RFRA law has two distinct differences setting it apart from other states and the federal statute. First, the law specifically states corporations can invoke the law, which is a move Benson said was likely inspired after the recent U.S. Supreme Court decision  that for-profit companies can invoke the law as a defense in the Hobby Lobby case. In that case the court ruled Hobby Lobby did not have to provide employees insurance which included contraceptives because it went against the company's religious beliefs.

Second, the law in Indiana allows a person to invoke the law against another person.

“I think early on when people supported it, they didn’t envision it being used against civil rights laws because it was in essence a type of civil rights law in and of itself," Allen said.

Similar RFRA laws have been introduced in the Michigan legislature this year. A similar effort in the House stalled out in late 2014.

A spokesperson for the Republic Senate Majority Leader said there was no timeline in place to address the RFRA bills on the table, adding the priority now is to pass the state budget.