A proposed law in Indiana would replace the state’s Religious Freedom Restoration Act with language that its advocates say is clearer in protecting religious liberty and certain other rights.
The measure, Bill 66, omits the amendment Indiana Gov. Mike Pence added to the Indiana Religious Freedom Restoration Act last April after intense backlash from critics, who called it “anti-gay” and threatened to boycott the state.
The amended “fix” stated that the religious freedom law would not permit discrimination for services, housing or employment based on sex, religion, disability, sexual orientation and gender identity.
Bill 66 does not include this stipulation, which some proponents of religious freedom believed to undermine the law’s purpose, leaving them vulnerable to legal attacks. Like the Religious Freedom Restoration Act, the proposed new law would require “strict scrutiny” as the appropriate level of judicial review for legal challenges involving religious freedom. As a result, courts would evaluate cases based on certain strict criteria: Government may not place a substantial burden on free exercise of religion unless there is a compelling state interest for doing so, and the least restrictive means are used.
In addition to religious freedom, the bill would also protect five other rights with a similar “strict scrutiny” standard of judicial review: the right to worship; the right to free exercise and conscience; the right to freedom of thought and speech; the right of assemblage and petition; and the right to bear arms.
Bill 66 was recently sent to the Senate Judiciary Committee for a hearing.
“This new bill has many positive aspects,” Glenn Tebbe, executive director of Indiana Catholic Conference told CNA. “It provides for strict scrutiny for government to have as a criteria when engaging in people’s rights. And in particular with religious freedom, it does so in a clear manner, tying it to Indiana’s Bill of Rights.”
“The bill also removes the ‘fix’ added to RFRA proposed last year,” he continued. “The amended law now in effect leaves a lot of unanswered questions which could potentially lead to unnecessary conflict between people and institutions.”
“This new law addresses this and should be beneficial in the long-run to preserve the religious freedom of all citizens,” Tebbe said.
But some argue that the state’s Religious Freedom Restoration Act already protects religious freedom, questioning whether there is a need to focus only on a handful of rights in the bill.
“Indiana already has an effective RFRA law that protects religious freedom,” Rick Garnett, law professor at Notre Dame University told CNA. “Unfortunately, it has been badly misrepresented.”
“This legislation takes a new way to approach these issues by requiring strict judicial scrutiny of a catalogue of rights for some and not others,” he said. “Unlike RFRA laws with an established judicial track record, we have less certainty on how this new law will work in practice.”
“What we would need to know is if there is evidence in Indiana that these other rights mentioned in this bill are vulnerable and not being respected,” Garnett added.
Sen. R. Michael Young (R-Indianapolis), who sponsored the legislation, said he wanted it to be clear and focused.
“Last year, people misunderstood RFRA and so it was important for me to write this new law and clarify things,” Young told CNA.
“The right to protest government is as important as the right to free speech and thought, the right to bear arms, and the right of freedom of conscience and freedom of religion,” he maintained.
“When it comes to our core rights, we should have the highest judicial standards—that is, strict scrutiny,” Young said. “But strict scrutiny doesn’t apply to all 37 Articles of the state’s Bill of Rights. Many of these don’t apply to personal rights but to group rights.”
LGBT groups have opposed the bill, saying it could be used to discriminate against them and derail their efforts to obtain new civil rights protections.
But Young reassures his critics that this will not be the case.
“This law will not be used to discriminate against anyone,” he said. “There is nothing in this bill that will allow anyone to discriminate against anyone for any reason.”
“All it will ensure is that the court will have a standard it will use to make decisions in all cases,” Young continued. “If the issue concerns religious freedom, the court will use strict scrutiny to resolve the issue.”
“This law does not favor one group of people over another,” he said. “It protects all people and fundamental rights in the same manner.”
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