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
kreskew@indiana.edu


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.

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.

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


“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.