Constitutional Law

Indiana Religious Controversies Analyzed by Former Indiana Supreme Court Justice

by Tess Anglin, 2L Note Candidate

Michael DeBoer’s article Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, tracks Justice Dickson’s contribution to the development of Indiana constitutional law through analyzing three cases surrounding the interpretation of the religious provisions of the Indiana Constitution. With respect to each case, DeBoer notes Justice Dickson’s approach to analyzing questions of religion within the framework of the Indiana Constitution. From observing records of debates from the 1850-1851 Constitutional Convention, to reviewing historical surveys and comparing other state constitutions, Justice Dickson paid due diligence to understanding the intent of the framers of the Indiana Constitution on issues of religion. Michael J. DeBoer, Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, 50 Ind. L. Rev. 75 (2016) (available at

Justice Dickson retired from the Indiana Supreme Court in April of 2016, ending his tenure as the second-longest-serving Indiana Supreme Court justice. Chief Justice Loretta Rush succeeded Justice Dickson. Indiana Supreme Court Justice Brent Dickson Retiring in April, INDYSTAR (Jan. 11, 2016, 12:55 PM), [].

In recent years, Indiana made national news for its adaption of a bill regarding religious freedom. Following the United States Supreme Court case Burwell v. Hobby Lobby, which held closely held corporations, as well as individuals, can assert religious rights, Indiana enacted the Religious Freedom Restoration Act (RFRA). RFRA creates an “exemption from general legal requirements for religious objectors unless the government can carry an especially heavy burden to show that the objection should be required to comply with the law.” RFRA caused a significant amount of controversy in Indiana, especially among the LGBTQ community due to the fear that businesses would abuse the exemption to discriminate LGBTQ consumers. Howard M. Friedman, 10 Things You Need to Know to Really Understand RFRA in Indiana and Arkansas, The Washington Post (Apr. 1, 2016), [].

In February of 2016, an Indianapolis mother, Khin Par Thaing, received felony charges for beating her 7-year-old son with a coat hanger. Thaing initially claimed a religious exemption for the abuse under RFRA, arguing the beating was a form of discipline as prescribed by the Bible. Greg Bowes, Thaing’s lawyer, articulated in a filed memorandum that under RFRA, Thaing had “the right to discipline her children in accordance with her beliefs, and that the state should not interfere with her fundamental right to raise her children as she deems appropriate.” Vic Ryckaert, Son had 36 Bruises. Mom Quoted the Bible as Defense., INDYSTAR (Aug. 31, 2016, 6:58 AM), []. Ultimately, Thaing pled guilty to battery, and in exchange the prosecutors agreed to dismiss the neglect charge. Indianapolis Woman Who Cited RFRA and the Bible as Defense for Beating Son Pleads Guilty, FOX59 (Oct. 28, 2016, 11:26 AM), [].

With Justice Dickson retired from the bench, it will be interesting to see how the current Indiana Supreme Court will analyze both the scope of RFRA and the Indiana Constitution in cases where a religious defense is asserted to felony charges of battery and neglect. If the current court follows the groundwork of constitutional analysis of religion Justice Dickson followed, the court likely would begin looking to the Act itself as a primary resource. Next, the court would look to sources and documents that contributed to the Act, evaluate other relevant primary sources to indicate the historical context of the Act, and look to secondary sources.

Since RFRA’s enactment, the Act has primarily been used to excuse individuals from actions that would otherwise be criminalized, such as smoking marijuana and tax evasion. Thus far, the religious exemption to crimes created by RFRA has not prevailed. Josh Sanburn, How Indiana’s Religious-Freedom Law Is Being Used to Defend Child Abuse and Other Crimes, TIME (Sept. 8, 2016), []. To read more about this issue, check out Michael J. DeBoer’s article in the Indiana Law Review.

Introducing the Presidents of the United States, Donald Trump AND Hillary Clinton

by Tyler J. Haston, 2L Note Candidate

Donald Trump or Hillary Clinton? While some voters were robust supporters of one of these candidates, the common response from several people in this country during the last election was, “Neither!” While roughly half of the country supported Donald Trump j16_4119and felt that Hillary Clinton would trample on their rights, the other half supported Clinton and believed Trump would ignore their needs entirely. Both sides feared that the other would fail to represent them at all. I firmly believe that both are correct. Political polarization has become so concrete in our country that the president essentially does only represent “their side” and their supporters, leaving roughly half the nation with nothing to do but attack the president, their political party, and nearly every single decision they make during their term. This creates a never-ending cycle of political warfare and American divide. To fix this problem, we should not have been asking the question of Donald Trump or Hillary Clinton during the last presidential election. Rather, we should have welcomed the concept of introducing the “Presidents of the United States, Donald Trump AND Hillary Clinton.”

A bipartisan executive branch would make tremendous strides in reducing most of the political polarization that has entrenched itself in our nation. See generally Political Polarization in the American Public, Pew Research Center (June 12, 2014), []. A two-party presidency would allow for nearly all Americans to have their voices heard and have their interests represented in a fair manner. When the founding fathers decided on a one person executive—a single president—it was the correct decision. At that time in history, the nation was more united, population was minuscule compared to today, and party polarization was not as extreme. The president could represent the entire nation—or at least a vast majority. However, several developments have occurred in the past two centuries. While leaders in this area identify several issues, two major developments have been identified as driving the need for change. See generally David Orentlicher, Two Presidents are Better Than One: The Case for a Bipartisan Executive Branch (2013).

First, the president no longer views the entire country as its constituency. Rather, the president is forced to focus on those who already support him or her and take actions to keep that half of constituents satisfied. Those who oppose the president are likely to oppose him or her no matter what, so why bother aiming to please that half of constituents? In a bipartisan executive system, all constituents could focus solely on the quality of the candidate for their party. If individuals know that they will be represented regardless, they could spend more time focusing on what the candidates actually believe and represent and less time on simply condemning the opposing party. Ideally, this would lead to the selection of the best two individuals to represent nearly all constituents in the country, not just the half that prevail. Imagine if the consideration was, “Who is the absolute best person in this nation to represent my interests and beliefs?” rather than, “Who can raise enough money to beat the other party in the election?”

The second major issue that calls for a bipartisan executive branch is that the president has assumed far greater policy making power than the founding fathers ever envisioned. To further the issue expressed above, this power influx allows the president to make decisions that nearly half the country will always disagree with without having any say in the matter. A two-party presidency could alleviate much of that dissatisfaction. If the two presidents must agree on a decision before it is made, such as an executive order or even a declaration of war, constituents could feel that their opinions were represented in making that decision, regardless of the outcome.

On November 8, 2016, the most powerful nation in the world decided it would be exclusively be run by Donald Trump. This is what political polarization has led us to. Perhaps it is time to explore the concept of a bipartisan executive branch. To read more about this issue, check out David Orentlicher’s article in this issue of the Indiana Law Review. David Orentlicher, Political Dysfunction and the Election of Donald Trump: Problems of the U.S. Constitution’s Presidency, 50 Ind. L. Rev. 247 (2016) (available at

Congress’ Role in the Rules-of-the-Road of Representative Democracy

by Yaniv Shmukler, 2L Note Candidate

In his recently published article, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, Professor Mark Rosen discusses how voting rights, gerrymandering, and political campaigns lead to increased polarization in today’s political climate. He notes that most rules-of-the-road are state law, although Congress has the power to displace them. The article reiterates the main points from Rosen’s 2012 article, which suggested substantive and institutional ways to improve the rules-of-the road. Mark D. Rosen, The Structural Constitutional Principle of Republican Legitimacy, 54 Wm. & Mary L. Rev. 371 (2012).

The newly published article responds to critiques that say Rosen’s proposal is self-defeating j16_4169-1by invoking the constitutional origin of the rules-of-the-road and Congress’ ability to affect them. He connects these two ideas by arguing that an increased perception of the rules-of-the-road as constitutional will lead to an increased role by Congress.

Given the hostile political climate that has arisen since the 2016 presidential election, Rosen’s recommendations are more relevant now than ever. Political polarization has reached new heights, and even educators are struggling with this new reality. Vikki Ortiz Healy, Educators Struggle to Teach Election Lessons amid Charged Presidential Race, Chicago Tribune (Sept. 24, 2016, 5:35 AM), []. This partisan divide prevents important legislation from being passed, leading to disillusionment within the populace. Partisan bias in redistricting, known as gerrymandering, persists despite efforts to eliminate the bias through independent commissions. Voting rights issues continue to be debated, as some states pass controversial voter ID laws and prevent felons from voting. In some cases, courts have struck down such laws, while in other cases, voting bans have been upheld. Congress can eliminate the uncertainty created by these rulings by playing a larger role in voting rights legislation.

Rosen argues that Congress should play a larger role in solving these problems. By bringing the constitutional origins of the rules-of-the-road to light, Rosen is hoping to give Congress a better understanding of its power to create change without waiting for the judiciary to decide on certain issues. With his new article, Rosen provides a much-needed perspective that could reduce partisan gridlock and lead to solutions to difficult problems. To read more about this topic check out Rosen’s article in this issue of the Indiana Law Review. Mark D. Rosen, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, 50 Ind. L. Rev. 265 (2016) (available at

Something Must Be Done: Finding a Solution to America’s Tumultuous and Complex Relationship with the Police during Traffic Stops

by Zachary J. Mahone, 2L Note Candidate

This past July, the haunting cell phone footage of Philando Castile’s death sent shockwaves through the already shaky ground of police and public relations. After being pulled over for a broken taillight, Castile was shot and killed by a Minnesota police officer over a miprofessional-headshot-1sunderstanding involving a legally registered hand gun. Eliott C. McLaughlin, Woman Streams Aftermath of Fatal Officer-Involved Shooting, Cnn (July 8, 2016, 4:57 PM), []. Castile’s death, like many of the unfortunate police shootings before it, ignited a conversation on how law enforcement officers should behave during traffic stops.

Unfortunately, this dialogue to arrive at a solution has had an inconsistent focus. While the public has demanded body cameras and police accountability, some government agencies have turned to tactics on the other side of the spectrum directed at educating citizens on how to behave when pulled over. Both of these solutions have questionable effectiveness, limited scope, and ultimately fall short in being a definitive resolution.

Although many view body cameras as the key to healing police and public relations, the science on why or how body cameras work is uncertain. In studies done across the nation, the success of body cameras has varied mysteriously. In some areas, body cameras work amazingly well, and in others they seemingly increase the use of force. Barak Ariel, Do Police Body Cameras Really Work?, IEEE Spectrum (May 4, 2016, 7:00 PM), []. Further, body cameras for all their potential benefit will never be able to depict a situation fully. In a study highlighted by the New York Times, body camera footage was found to be subject to “deceptive intensity” in which body camera footage tends to make events appear more violent than they actually are. Timothy Williams et al., Police Body Cameras: What Do You See?, The New York Times (Apr. 1, 2016), []. Body cameras, although a helpful tool to deter police aggression, are limited and can ironically deceive. Thus, body cameras should not be viewed as a final solution.

A solution on the other side of police accountability and body cameras is public education on proper behavior during traffic stops. For example, the FBI in Springfield, Illinois is working on an educational video directed at teaching high school students how to behave during traffic stops. FBI Video to Show Illinois Teens How to Act in Traffic Stops with Police, Chicago Tribune (Oct. 1, 2016, 4:31 PM), []. Along with showing the video, schools across Illinois will be expected to teach students how to handle being stopped by a police officer as a part of the driver’s education curriculum. This approach may be viewed as a step in the right direction but it is only focused on one side of the police and public relations formula. An educational video would have done nothing to help Philando Castile. Both body cameras and educational videos fail in that they are restricted and can only do so much. Instead, what is needed is a complex and dynamic solution to match the complex and dynamic problem.

In his Note, Policing the Police: Re-examining the Constitutional Implications of Traffic Stops, Benjamin Jaqua proposes police regulation through new department policies and state legislation. Jaqua finds that solutions to fix public and police relations must consider three competing considerations: the police officer’s interest in clarity, society’s interest in effective law enforcement, and the individual’s interest in privacy and dignity. Uniquely, Jacqua’s Note is influenced by his personal experience as an officer with the Memphis Police Department. Jaqua hopes to provide guidance to limit police shootings and to heal the rift that exists between the public and police officers. Philando Castile’s death is a call for a practical solution that is aimed at the complex relationship between the police and the public. Benjamin Jaqua’s Note addresses this complexity and provides a workable solution. Jaqua, Benjamin, Policing the Police: Re-examining the Constitutional Implications of Traffic Stops, 50 Ind. L. Rev. 345 (2016) (available at

Justice Dickson’s Lasting Influence

by Kelsey Dilday, 2L Note Candidate

Justice Brent E. Dickson of the Indiana Supreme Court retired on April 29, 2016, after a 30-year term. Justice Dickson is the second-longest-service Indiana Supreme Court Justice after Justice Isaac Blackford who served for more than thirty-five years in the 1800s. Indiana Supreme Court Justice Brent Dickson retiring in April, INDYSTAR (Jan. 11, 2016, 12:55 PM), [].  At his retirement, Justice Dickson was praised for his civility, wisdom, graceimg_5545, and wit during his time on the bench. Governor Mike Pence presented Justice Dickson with the Sagamore of the Wabash award for his longstanding service for Indiana. Justice Dickson hailed for his civility, grace at retirement, WISHTV.COM (April 29, 2016, 3:52 PM), []. This award is named after the Native American term “sagamore,” which referred to a great man within a tribe who would look to the chief for guidance. The award is a high honor, always bestowed by Indiana’s Governor to individuals who have “contributed greatly to our Hoosier heritage.” Sagamore of the Wabash Award,, [] (last visited Jan. 1, 2017). Chief Justice Loretta Rush also thanked Justice Dickson for his help in “institutionaliz[ing] civility” on the Indiana Supreme Court. Callahan, Rick, Retiring Indiana Justice Dickson hailed for civility, South Bend TRIBUNE (April 30, 2016), [].

However, Justice Dickson’s civility is not his only tribute to the Indiana Supreme Court, and he left behind thirty years of long standing court precedent. Throughout his thirty year term, he was an important influence on Indiana constitutional law. Justice Dickson was integral in the formation of the modern standards for application of the Indiana Constitution’s Equal Privileges and Immunities Clause. His opinions on wrongful death tort cases helped create a rulebook for practicing attorneys. Oddi, Marcia, Ind. Courts – “A Tribute to Justice Brent Dickson’s Contribution to Indiana Constitutional Law, The Indiana Law Blog (Mar. 20, 2016, 6:22 PM), []. Also notable is his influence in the reviving the Public Standing Doctrine, a doctrine which allows plaintiffs to sue to enforce public duties even if the plaintiff lacks a stake in the outcome of a case that differs from the stake held by the general public. Additionally, Dickson’s opinions are known to show a clear preference for jury decisions of factual disputes. As a strict constructionist, Justice Dickson, throughout his thirty years of service, remained dedicated to the Indiana Constitution and its framers’ intent, while setting aside his personal and subjective perspectives. IUPUI Law Professionals Reflect On Former Justice’s Impact, WBAA (Mar. 30, 2016), [].

While Justice Dickson’s thirty-year tenure for the Indiana Supreme Court is now over, it is clear that his ideas while on the Court will leave a lasting impression on Indiana’s legal landscape. To read more about Justice Dickson’s influence on Indiana constitutional law check out Jon Laramore’s article in this issue of the Indiana Law Review. Laramore, Jon, Justice Dickson’s Thirty-Year Influence on Indiana Constitutional Law, 50 Ind. L. Rev. 49 (2016) (available at


2015 ILR Symposium: Partisan Conflict, Political Structure, and Culture

The Indiana Law Review invites you to join us for our annual symposium, titled Partisan Conflict, Political Structure, and Culture, on Friday, November 6, 2015 from 8:50 a.m. to 4:00 p.m. A detailed agenda can be found here.

Online Registration for Outside Attendees
Online Registration ONLY for IU McKinney Students, Faculty, and Staff

A Roadmap for Business and Social Movement Collaboration

by Kelly R. Eskew, J.D.
Clinical Associate Professor
Department of Business Law & Ethics
Kelley School of Business, Indiana University
1309 East Tenth Street
Bloomington, IN 47405

This year, the Indiana General Assembly offered up Senate Bill 101 (the Religious Freedom Restoration Act or “RFRA”), [1] a law ostensibly intended to protect Hoosiers from having to violate their religious principles, but widely viewed as a discriminatory response to the Seventh Circuit’s ruling in 2014 that struck down the state’s prohibition on same-sex marriage. [2] RFRA raced through the Republican supermajority legislature and was quickly made law by Governor Mike Pence, one of the nation’s most conservative governors. [3] But soon after, Pence signed an amendment that not only affirmed the rights of gays and lesbians, but also those who face discrimination on the basis of gender identity. [4]

Business and grassroots advocacy leaders collaborated to try to defeat RFRA. [5] None expected to succeed, [6] but what they achieved surprised everyone – and this collaboration is not an outlier. Businesses worked with social justice advocates on marriage equality, which is now the law throughout the country. [7] In fact, businesses often engage in such initiatives. [8] Businesses have corporate social responsibility (“CSR”) programs of varying complexity that not only make charitable donations through their foundations, but also pioneer environmental projects and work to strength communities and schools. [9] CSR is also part of the syllabus in business ethics classes, which many business schools now require students to take. [10] In other words, social responsibility has moved from fad to policy. Businesses are also creating their own social movements that mirror the principles shared by grassroots advocates in areas such as poverty eradication, health-care access, and sustainability. [11]

So when and why does the American business community align itself with grassroots social movements? And is there a roadmap that shows each how to leverage the other to achieve shared goals? A fully fleshed response to these questions is beyond the scope of this post, but the RFRA experience suggests some answers. (more…)

Testimony of Professor of Law Robert Katz on Indiana RFRA

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. (more…)

Local Legislators and the Need for an Evidentiary Privilege

by Jonathan Hughes [1] (Attorney Profile)
Bose McKinney & Evans, LLP
111 Monument Circle, Suite 2700
Indianapolis, IN 46204
(317) 684-5381

“To preserve legislative independence, . . .‘legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’” [2].

“Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.” [3].

“We are governed by laws, not by the intentions of legislators.” [4].

“[I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators . . . .” [5].

“All politics is local.” [6].  Former Speaker of the House Thomas Phillip “Tip” O’Neill used these words to remind federal politicians to “pay attention to their own backyards and take care of their folks.” [7].  The concept also carries a broader meaning – that local legislative actors are most intimately entrusted with providing services to the public.  Often, local legislative actors are not afforded the opportunity to focus solely on their legislative jobs.  Their role as town council member, city council member, or state legislator is often only a part-time job for which they must supplement their salary with other work.  Federal legislators, on the other hand, are afforded full-time jobs and a staff to assist them in performing their functions.  In this context, when a city or town is sued for taking some legislative action, the local legislator should be protected from judicial inquiry to the same extent as the federal legislator.  Unfortunately, a circuit split has developed, with some federal courts providing a lesser legislative immunity to local legislators than is provided to federal legislators. (more…)