Why Indiana’s RFRA is a Special Legislative Snowflake and What It Means for Religious Freedom Laws

If I had a penny for every time I’ve heard my home state mentioned this past week, I’d have enough money to buy a slice at Memories Pizza.

But why would I want to spend money on some hand-tossed bigotry when I could keep the pennies to throw at Gov. Pence’s head?

Obviously, I’m from Indiana. Or was from. I’ve been away for a decade now (more on that later).

While I’ve been delighted to read about the wide-ranging opposition to my home state’s new Religious Freedom Restoration Act — some comedic, some angry, some dismal, some hilariously ridiculous — I’ve been far more interested in the legislative details. Because Indiana’s RFRA is different than the RFRAs previously passed in 19 other states. When a conservative pundit tells the media, “I don’t know why people are so upset. This law has been on 19 state books for years,” he is assuming his viewers/readers/listeners are all idiots who can’t do their own research on the matter. So let’s prove that guy wrong.

How Indiana’s RFRA Is Different From The Others

First of all, since The Religious Freedom Restoration Act was passed on a federal level in the Burwell v. Hobby Lobby Stores, Inc. case – a decision that “closely held” corporations can act on their religious beliefs – a cloud of ambiguity surrounded the specifics regarding to whom or what the legislature pertained. Until Indiana’s passage of the bill, it really only pertained to, well, Hobby Lobby. But thanks to Indiana’s State Senate, House of Representatives, and, of course, Governor Pence, it would seem that the legislature may have been expanded to include both individuals and corporations alike, and is applicable to interactions between individuals and corporations (business/customer, business/employee). As The Atlantic pointed out, “…the Indiana statute explicitly makes a business’s ‘free exercise’ right a defense against a private lawsuit by another person, rather than simply against actions brought by government.” Businesses can now construct and amend their own corporate policies to reflect their religious beliefs without being concerned about governmental punitive measures.

Policymakers from the 19 states with active, though more lax, versions of the RFRA have since been scrambling to amend the language of their bills to include corporations too.

Copycats.

Indiana’s RFRA Took The Law’s Original Intent Out of Context

It’s important to consider the RFRA’s history: it was originally conceived over 20 years ago during the Clinton administration. The law, signed into effect in 1993, was drafted in response to the 1989 Supreme Court ruling in the Employment Division v. Smith case. This lawsuit involved two Native American drug-rehab counselors who had taken peyote and were consequently fired from their jobs for doing so. Originally, the Religious Freedom Restoration Act was constructed to protect these two individuals, who had defended their actions by stating they were simply part of their religious practice.

This means that, originally, the bill was intended to protect minority religions, and indeed the 1993 RFRA legislation has often been used for that purpose. The broadness of the new legislation would mean this isn’t necessarily the case in Indiana, however.

In Most States, Non-Discrimination Laws Override The RFRA

But not in Indiana. There are no state-level non-discrimination laws based on sexual orientation. Individual counties can draft their own legislature on the matter and put it into effect, but it still doesn’t protect individuals from discrimination by corporation. While a “fix” has been issued and this “fix” provides that Indiana’s RFRA cannot override local anti-gay discrimination laws, it’s important to remember: most counties in the state do not have local anti-discrimination laws. As ThinkProgress so pointedly notes: “LGBT people in Indiana gain no new rights from the fix.”

It’s Personal

Lastly, Indiana’s RFRA can be invoked in civil suits. While other RFRA bills were designed to make it “difficult for the government to enforce laws that infringe upon or overstep one’s religious beliefs,” Indiana’s RFRA includes a clause stating the law applies “regardless of whether the state or any other governmental entity is a party to the proceeding.” This basically means it can be applied in private suits.

The backlash has certainly intensified in the wake of SB101’s initial passing. Amid the pressure, after first promising and then refusing, Gov. Pence has yet to “clarify” the bill. In the meantime, he’s costing his state a buttload of money (like, billions).

And I’m sad for my LGBTQA friends back home – they’ve fallen prey, along with hundreds of thousands of other minorities and allies in the state, to the religious whims of the old, white, impotent members of their state’s government. And I won’t lie; part of why I moved away ten years ago had to do with the state’s seemingly ubiquitous conservativeness. But as much as I’m sad for my friends who’ve stuck around, I’m also proud of them. They’re the ones making the biggest difference, every day.


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Abby Higgs lives in Baltimore, Maryland, which is not as bad of a place as National Geographic makes it out to be. In 2012, she received her MFA in Creative Writing & Publishing Arts from The University of Baltimore. When she's not writing, she's carefully applying anti-bacterial hand gel up and down her extremities to ward off all of the germs. More of her words appear here: www.slowclapabby.com.

Abby has written 4 articles for us.

5 Comments

  1. Carltom

    I’d be interested to hear people’s thoughts on the boycott

    • That’s a tricky one. I’m all for organizations putting extreme economic pressure on the state gov’t— even as someone who lives here and thus who’s directly impacted by that pressure. On the other hand, Hoosiers aren’t exactly known for their astute economic decisions. For example, the “right to work” BS from a while back. The state is more concerned with making ideological decisions than it is in actually measuring the costs and benefits of those decisions. Thus, I’m afeared that boycotts aren’t terribly likely to effect change.

      Another important issue, raised by a friend, is that the boycotts are disproportionately likely to harm minoritized business owners. If true, then the boycotts serve to consolidate the conservative white-suppremicist majority by depriving minoritized people of our economic power to confront that majority.

  2. Thanks for writing this up. I’ve been too pissed/burned-out to do my own writeup, but now I can refer everybody to yours! :)

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