Indiana's new Religious Freedom Restoration Act (RFRA), which governor Mike Pence signed into law today, does not create a de jure right or license to discriminate against gay people (or anyone else) on the basis of one's "religious" "beliefs," but it will create a de facto license to discriminate as such by emboldening discriminators and discouraging victims from suing.
(That was the conclusion of my last diary which I wrote the other day, so I didn't want to do another one, but I was commenting on this story and the comment started to run long so I thought I should diary it again instead of hijacking the thread.)
The headlines and titles of articles and stories about this law and its enactment that I'm seeing so far are labeling it a "right to discriminate" law, and calling Indiana a "right to discriminate" state. There is no question that this law and others like it have been proposed and passed in response to two things: (1) The Supreme Court's risible Hobby Lobby decision which was based on the federal RFRA, and (2) a series of lawsuits in various states wherein the "religious" "beliefs" of merchants could not overcome state or local laws proscribing commercial discrimination on the basis of sexual orientation. The thinking behind these state RFRAs is that (1) provided an avenue to combat and reverse (2).
There's no question that this RFRA was passed, and that RFRAs are being considered in other states, to make Christian bakers and florists and photographers who don't want to bake cakes, arrange flowers or take pictures at gay weddings because God might get mad at them if they do, feel like it's OK to refuse, feel like they have a right to refuse and that the government backs that right.
And it will have that effect. Even though it shouldn't.
It's important to remember that this particular type of discrimination is only redressable by a private civil lawsuit. Anti-discrimination statutes that establish which classes are protected, typically have the effect of creating a legal right of action for discrimination and a rebuttable presumption that the discriminatory treatment (a.) was motivated by the customer's membership in a protected class [and thus unreasonable as a matter of law], and (b.) inflicted economic harm on the customer. The customer loses the lawsuit if the merchant can overcome these presumptions. If there's no anti-discrimination statute or the customer is not in a protected class, the customer can still sue, but he bears the burden of establishing unreasonable treatment, breach of a legal duty, and economic harm, which is practically impossible, which in turn is why we have anti-discrimination laws.
Indiana's RFRA doesn't really change any of this. It's only meant to feel like it does. The effect it will have is to embolden and encourage discriminators to use their "religious" "beliefs" as a proverbial sword against whomever their imaginary friend and/or their favorite book of Bronze Age fairy tales orders them to hate -- and discourage and dissuade the victims of these modern-day Crusaders from haling them into court and hoisting them on their own righteous petard.
It shouldn't. More below the fold.
I would assume there is no state law in Indiana, although I understand there are local ordinances in some places, that prohibits commercial discrimination (i.e., a retail merchant's refusal to serve or accommodate a customer) on the basis of sexual orientation or gender identity. (Please correct me if I'm wrong.) And there is no federal law that prohibits commercial discrimination on that basis. In that narrow context, outside the municipalities that have such laws Indiana's new RFRA doesn't really change anything; it doesn't make this type of discrimination "legal."
From the article:
[T]his law will allow private businesses, individuals and organizations to discriminate anywhere at any time against any person they so choose based on religious grounds, so long as that discrimination is not prohibited by federal law. ... [A]ny discrimination that remains uncovered (which certainly includes, but is not limited to, sexual orientation and gender identity) will be legal in Indiana.
(emphasis added).
Two things: (1) The first sentence also applies to discrimination that is prohibited by state or local law, as illustrated below; and (2) discrimination is not strictly "legal" just because it is not prohibited by statute; it's still against the law if it is unreasonable and causes economic harm to the victim. (More here.)
OK; back to Christian merchants refusing to serve gay customers. Again, discrimination of this type is only redressable by a civil lawsuit, i.e., the customer sues the merchant for discrimination. A merchant who discriminates, therefore, is only risking a civil lawsuit when he kicks Nathan Lane and RuPaul out of his Bridal Boutique and Firearms Emporium when they come in to buy that tastefully-designed vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest for a party at Elton John's house, because selling high-end pastry to actors, singers and cross-dressers would make Baby Jesus cry.
What laws modeled on the federal RFRA don't do is create a complete defense to that lawsuit. RFRAs modeled on the federal law are directed only at government action compelling the behavior that supposedly violates the person's "religious" "beliefs." A civil lawsuit is not government compulsion; it's the private enforcement of a legal right.
Indiana's RFRA attempts to expand the scope of the federal RFRA to include private action. Where the operative provision of the federal RFRA reads as follows:
(a) IN GENERAL.—Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person's exercise of religion only if it 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.
(emphasis added), Indiana's RFRA reads thusly:
Sec. 6. A state action, or an action taken by an individual based on state action, may not substantially burden a person's right to the exercise of religion, even if the burden results from a law or policy of general applicability, unless the state or political subdivision of the state demonstrates that applying the burden to the person's exercise of religion is:
(1) essential to further a compelling governmental interest;
and
(2) the least restrictive means of furthering the compelling
governmental interest.
(emphasis added). This is an alarming and extremely important distinction, clearly indicating the desire and intent of the state to bring anti-discrimination laws and lawsuits ("action taken by an individual based on state action") within the ambit of Indiana's RFRA. The statute also adds the following:
Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.
So the
desire and intent of this law is to give merchants a way to defeat anti-discrimination lawsuits, by asserting that either the law or the lawsuit is a "violation" of the RFRA.
But I still don't think it will work.
Let's say a merchant who is sued by Nathan and Ru under a local anti-discrimination ordinance that protects LGBT persons invokes Indiana's RFRA as a defense under Section 9. The "violation of this chapter" that the defendant "may assert" can be only one of two things: (1) the anti-discrimination statute itself, or (2) the plaintiff's act of suing. The lawsuit can't really be a "violation of" the RFRA, because the plaintiff has an affirmative right to sue, it's hard to imagine the mere act of filing a civil action being a "violation of" any law (or that a person could have an affirmative legal right to not be sued), and RFRA does not explicitly bar private lawsuits, so the purported "violation of" the RFRA can only be the law itself.
Section 9 of Indiana's RFRA says that a person "may assert" that "violation" as a defense to a lawsuit, but the mere assertion would not be automatic grounds for dismissal; it would have to be an affirmative defense. Hence the merchant-defendant would have to show that the anti-discrimination statute itself -- as opposed to the enforcement of a rule by an administrative agency, like in Hobby Lobby -- is a "violation of this chapter," i.e., that it (1) imposes a "substantial burden" on his religious "beliefs" or "exercise," and if so, (2) that there is a less-restrictive means of accomplishing the government's goal, which has to be something other than burdening or condemning religion.
Anti-discrimination laws, be they federal, state or local, are passed for the purpose of protecting the actual, potential, predictable victims of discrimination from economic harm. They are certainly not passed for the sole purpose of burdening people's religious beliefs or exercise, and no competent court would ever hold to the contrary. Such laws are universally applicable -- i.e., no one regardless of their "religion" may discriminate against protected persons without risking a lawsuit -- and entirely unconcerned with the discriminator's reasons or justifications for mistreating the customer, which he is perfectly free to proffer and establish in defense of the lawsuit, RFRA or no RFRA.
No competent court would ever find that an anti-discrimination statute by itself places a "substantial burden" on the "religious" "exercise" of a retail merchant. And no competent court would find that the statute -- i.e., allowing protected persons to sue -- is not the least-restrictive means of furthering the government's legitimate goal of protecting minorities from unjust mistreatment and economic harm. In other words, a typical anti-discrimination statute cannot possibly be a "violation of" the RFRA. Even if some wingnut trial judge in some podunk jurisdiction gets this wrong, there is no way the law is ultimately going to allow a RFRA to trump an anti-discrimination law, or defeat a discrimination lawsuit.
Remember, a RFRA is a statute, not a constitutional provision. A "religious" merchant could not use a RFRA to get a state or local anti-discrimination statute struck down completely, and as we've seen in the baker/photographer/florist cases, the Constitution does not render anti-discrimination laws unconstitutional. Moreover, unlike in Hobby Lobby, where the company sued the Secretary of HHS to enjoin the enforcement of an administrative rule against it and others like it, there is no one a "religious" merchant could analogously sue to enjoin the enforcement of an anti-discrimination law as against him and others like him.
Along those lines, in a typical RFRA case it's the plaintiff claiming a "substantial burden" on his "religious" "beliefs," and once he establishes that the burden shifts to the government (i.e., the defendant) to establish that its goal is not to burden religion and that the challenged action is the "least restrictive means" of furthering that goal. Since the government is not a party to a discrimination lawsuit, it's not in a position to establish anything.
The Indiana RFRA therefore contradicts itself. Section 6 provides that the action may not substantially burden religion "unless the state or political subdivision of the state demonstrates that applying the burden" is essential and least-restrictive, but Section 9 allows the RFRA to be used as a defense "regardless of whether the state or any other governmental entity is a party to the proceeding." How is "the state or the political subdivision" supposed to "demonstrate" anything if it's not a party to the lawsuit? If "an action taken by an individual based on state action" -- i.e., filing suit under an anti-discrimination statute -- can't substantially burden religion unless "the state ... demonstrates" something, when, where, to whom, at what point, in what forum, by what means, &c., is the state supposed to do the "demonstrat[ing]"?
Leaving all that aside, with the state absent from the proceedings, whose burden would it be? The plaintiff didn't enact the statute, so it's not his job to defend it. The anti-discrimination law entitles him to certain legal presumptions, including that the discriminatory treatment is unreasonable, that the defendant has to overcome. And as noted above, this is an affirmative defense. So, since it's the defendant and not the plaintiff invoking the RFRA, he would have to establish a "violation of this chapter," viz., a "substantial burden," and either the absence of a compelling governmental interest or the existence of a less-restrictive alternative.
A "religious" exemption from an anti-discrimination statute would have to be written into that statute in order to have the effect that RFRA proponents desire and critics fear. A RFRA alone won't do that; at least, not de jure. The trouble is that most people don't know that, and it's distressing to think how many gay people and couples will just accept being denied service by good, righteous "Christians" because they think they can't successfully sue. The sooner someone challenges this de facto license to discriminate in court, the better.
Sun Mar 29, 2015 at 12:42 PM PT: OK; it looks like the sections quoted here don't match the final enacted version of the law posted here. The operative provision is Section 8, not 6, and it does not include the "action taken by an individual" language. Section 9 does provide for the defense to a lawsuit to which the state is not a party, and that the state has a right to step in and intervene.
But what if it doesn't?
And why would the state "intervene" to defend an anti-discrimination law that it clearly wants to undermine?
The calculus, I think, is still the same; the defendant invoking the RFRA would have to establish the "substantial burden," and either the absence of a compelling state interest or the existence of a less-restrictive alternative.