Law and Religion

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 https://mckinneylaw.iu.edu/ilr/pdf/vol50p75.pdf).AnglinProfessionalPic

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), http://www.indystar.com/story/news/politics/2016/01/11/indiana-supreme-court-justice-brent-dickson-retiring-april/78633916/ [https://perma.cc/83T2-5PVF].

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), https://www.washingtonpost.com/news/acts-of-faith/wp/2015/04/01/10-things-you-need-to-know-to-really-understand-rfra-in-indiana-and-arkansas/ [https://perma.cc/467L-EY5M].

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), http://www.indystar.com/story/news/crime/2016/08/31/son-had-36-bruises-mom-quoted-bible-defense/88998568/ [https://perma.cc/C8PN-VZKP]. 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), http://fox59.com/2016/10/28/indianapolis-woman-who-cited-rfra-and-the-bible-as-defense-for-beating-son-pleads-guilty/ [https://perma.cc/AU3H-9CTL].

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), http://time.com/4481073/indiana-rfra-law-child-abuse/ [https://perma.cc/3UM7-6LJD]. To read more about this issue, check out Michael J. DeBoer’s article in the Indiana Law Review.

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…)