by Robert A. Katz
Professor of Law (Faculty Profile)
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 349
530 W. New York Street
Indianapolis, IN 46202-3225
[Editor’s Note: This article departs from the typical format and citation style of the Indiana Law Review Blog in the interest of providing commentary on the passage of Senate Bill 101, commonly referred to as the “Religious Freedom Restoration Act,” or RFRA. This article consists of abbreviated remarks presented by the author to the House Judiciary Committee of the Indiana General Assembly on March 16, 2015, 10 days before the bill was signed into law by Indiana Governor Mike Pence.]
Good day. My name is Robert Katz. I am a professor of law at Indiana University Robert H. McKinney School of Law where I teach First Amendment law and law and religion. My research focuses on the tension between religious freedom and anti-discrimination law. It is one of my most profound concerns as a citizen, a parent, and a member of the Jewish community.
The freedom of religion is one of our most fundamental rights as Americans. Yet, also precious to us as citizens are our civil rights and, most relevantly here, our right to be free from discrimination.
As I understand it, this bill has two main goals. First, it aims to assure Hoosiers that they will be protected from general laws that substantially burden their religious exercise, unless this burden is justified by a compelling governmental interest that is narrowly tailored to achieve that goal. The second purpose of this bill is to assure Hoosiers that more protection for religious exercise will not weaken protection for civil rights — especially anti-discrimination laws.
The uneven and unbalanced assurances that this bill provides to these two constituents — those concerned about religious liberty and those concerned about anti-discrimination laws — is the most lethal and difficult feature of this bill. While it goes to great lengths to assure Hoosiers that their religious exercise will enjoy more protection, it does very little, if anything, to assure Hoosiers that the same bill will not weaken their civil rights.
This lack of balance is all the more striking because this bill is arguably unnecessary to achieve the first goal of providing more protection for religious freedom. Indiana law already protects Hoosiers from general statutes that substantially burden their religious exercise. This protection arises from multiple sources.
First, the Indiana Bill of Rights expressly protects religious exercise. . and does so more emphatically than the First Amendment of the federal constitution.
Second, the Indiana Supreme Court has refused to follow Employment Division v. Smith,  the Supreme Court’s infamous 1990 decision gutting the traditional protections for free exercise of religion. Instead it uses heightened scrutiny to review general laws that substantially burden religious exercise.
Third, the Indiana legislature has provided exception after exception from general laws that substantially burden religious exercise in particular circumstances. For example, it has granted parents an absolute right to refuse medical treatment for their child based on religious objection. These sorts of exceptions are written throughout the Indiana Code and show how available and accessible it is to accommodate religious Hoosiers.
But some proponents of this bill say, “We are not taking any chances. Yes, the Indiana Supreme Court provides heightened scrutiny to review general laws, but who knows, maybe they will steer in favor of Smith. And we are concerned that the heightened scrutiny that the Indiana Supreme Court has provided just is not high enough.”
Contrast the bill’s ironclad protections of religious exercise with its silence — screaming silence — on protecting freedom from discrimination and its utter lack of assurances to Hoosiers that this bill will not infringe on their right to be free from discrimination.
So the problem here is what this bill does not say. It does not say that the protection of civil rights is a compelling governmental interest. Why does this bill not itself provide an exemption for anti-discrimination laws? By failing to exempt anti-discrimination laws from the bill’s reach, it implicitly subordinates these to the RFRA bill. It is this omission from the bill that instills fear in people who depend upon anti-discrimination laws and who look with trepidation at how they are treated as step-children to those concerned about their religious liberty.
The statute could literally not do more to assure people who are concerned about religious liberty that they will be taken care of. But it has absolutely nothing to say about freedom from discrimination. The fact that it does not suggests that the protection of religious exercise from generally applicable laws is the preeminent compelling government interest in the State of Indiana.
To avoid this inference, I urge the Committee to amend the bill to declare that the protection of civil rights — including the right to be free from discrimination — is itself a compelling governmental interest.
It is a very simple, modest change to this bill. If this bill is in fact designed to protect religious freedom without subordinating anti-discrimination laws, then the members of the Committee should be grateful for the opportunity to clarify this.
It puts this Committee to the test: do you actually believe this? Is it, in fact, your goal, as I understand it, to expand religious liberty without restricting the right to be free from discrimination? If that is the goal — and that is a good goal: these are both critical to our constitutional order, to ordered liberty, to what we care about as citizens — then this is the place to do it and now is the time to do it. This Committee should put this in the bill itself and not delegate the anti-discrimination laws to the vagaries of court decisions, as the committee has refused to do with the protection of religious liberty. This way, no chances are taken; no opportunities are left for courts to tinker with it.
In the end, from a legal prospective, our positions on this bill are not that far apart. The concerns that I have raised can be addressed in this bill simply by adding language — a sentence perhaps — making it clear that this bill cannot countermand civil rights laws and ordinances that protect the right to be free from discrimination and that the protection of this right is itself a compelling governmental interest.
. IND. CONST. Art. 1, § 3
. Emp’t Div., Dep’t of Human Resources of Oregon, 494 U.S. 872 (1990).