April 2, 2015
In an e-mail discussion forum a friend made the following comment about the Indiana act:
“As I read the actual text of the law the media has done an absolutely abysmal job of accurately reporting and covering this thing. The act only applies to government agencies and specifically excludes applicability to private companies. It doesn’t even touch on interactions between a customer and a company. There is nothing in this law that makes it easier (or more difficult) for a private company to discriminate against their customers or anyone else. There’s really nothing in the act to get worked up over other than the mere fact that it is pointless and represents needless pandering to religious conservatives.”
I am not a lawyer, but while I certainly agree that the Act in question has been poorly reported in the media, I think that my friend may have misread the law when he made the following three statement: “(1) The act only applies to government agencies and specifically excludes applicability to private companies. (2) It doesn’t even touch on interactions between a customer and a company. (3) There is nothing in this law that makes it easier (or more difficult) for a private company to discriminate against their (sic) customers or anyone else.”
The examples often cited in the media are that a florist might decline to provide flowers for a homosexual wedding, or a baker to provide the wedding cake, on the basis that homosexuality was an offense to his or her religious beliefs.
If either a civil action were brought, or a criminal complaint filed against the business, it would be on the basis of ordinances or laws against discrimination by those providing goods or services to the public. Such laws can only forbid discrimination on the basis of a class defined by “protected” features, such as sex, age, race, religion, etc. Not very long ago, homosexuality had not been a protected class or status, but whenever a government entity made it “protected” by law or executive order, etc., Section 8(a) in this law, (which affects prior laws retrospectively), would apply, placing upon the government (even though not a party to the civil suit), the burden of proof that “application of the burden (upon the religious beliefs of) the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
For an example of laws regarding equal treatment by entities offering goods or services to the public, take a look at the British laws described at:
In the case of the Indiana law, the requirement for the government to meet that burden of proof, on pain of several painful penalties for failing to do so, would be triggered under Section 10 (a): “If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person’s (Ed. e.g. the florist’s or baker’s) exercise of religion has been substantially burdened, or is likely to be substantially burdened”
In a final irony, the law says, “Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.” Which sounds to me like if the florist or baker merely SAY that giving service would violate their understanding of the religion in which they claim a belief, no law may compel them to provide it.
Because of the vague and ambiguous definition of religion I think the Indiana law would fail a court challenge, but taking it through all the appeals could take years. Alternatively, the prospect of having the state or other jurisdiction coming in to prove a “compelling government interest” and “least restrictive means” would have a chilling effect upon the passage of any laws and ordinances for which a religious nexus could be found or invented.
To recapitulate regarding your statements above: (1) the act pertains to laws that directly regulate the behavior or private companies and businesses; (2) It provides an affirmative defense (an exception to the anti-discriminationo law) for businesses, when civil suits or criminal complaints are filed by their customers; (3) It greatly strengthens the defense of businesses against charges of illegal discrimination, thereby making it easier/possible for the business to discriminate.
That’s what I understand the Act to say, but I am willing to listen to other opinions.
My friend was kind enough to provide a copy of the Indiana Act for reference.
SENATE ENROLLED ACT No. 101
AN ACT to amend the Indiana Code concerning civil procedure.Be it enacted by the General Assembly of the State of Indiana:SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:Chapter 9. Religious Freedom RestorationSec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.Sec. 3. (a) The following definitions apply throughout this section: (1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.Sec. 4. As used in this chapter, “demonstrates”means meets the burdens of going forward with the evidence and of persuasion.Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.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.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 compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.