SB 101 and SB 568 disputed in Indiana General Assembly


The Indiana General Assembly is currently considering legislation modeled after the federal Religious Freedom Restoration Act (RFRA).  The bills, SB 101 and SB 568, aim to protect business owners who object to providing certain services due to their religious beliefs. The Indiana Senate approved SB 101 on Tuesday, sending it along to the House for consideration.

Senator Scott Schneider, Indianapolis Republican, is the most prominent supporter of this legislation.  He sees a need for enhanced state protection for religious liberties, since the federal RFRA does not apply to states.  Nineteen other states have similar laws.

Arguments in favor of the bill claim that more protection for religious liberty is necessary in light of recent federal and state court decisions invalidating state laws that promote the traditional understanding of marriage.

Daniel Philpott, Professor of Political Science and Director of the Center for Civil and Human Rights, spoke with the Rover about the necessity of religious liberty legislation.  “To say that there is a need for enhanced legal protections for the religious freedom of universities, businesses, hospitals, charities, churches, and other associations in Indiana is not at all an exaggeration,” he noted.

“Recent federal court decisions, and possibly a U.S. Supreme Court decision this coming June, are declaring a revisionist view of marriage to be the law of the land.  Without legal protections, associations who want to govern themselves in fidelity to a traditional understanding of marriage may well come under great pressure to act otherwise—contrary to their conscience, contrary to their faith,” Philpott continued.  “There are few precedents in our nation’s history for restrictions on religious freedom of this degree and kind.”

By contrast, opponents of the bill argue that it permits and encourages discrimination.  Under the bill, bakers, florists, and photographers could refuse to offer their services to same-sex couples who are planning a wedding ceremony.  Adoption agencies could also cite conscience in refusing to place children with same-sex couples.  Opponents of the bill object that every business should provide services to everyone regardless of the business owner’s personal opinions.

“In my view, the opponents of the proposed RFRA are significantly overstating the risk it would promote or protect discrimination,” Professor of Law Rick Garnett told the Rover.

“The Indiana proposal is modeled on a federal law that has been on the books for more than 20 years, and both the federal law and similar laws in other states have not had such an effect,” he continued.  “In practice, courts are very able to strike a sensible, common-sense balance and accommodate religion in cases where doing so does not compromise important public interests, such as preventing unjust discrimination.”

Some other opponents who advise against passage of the bill argue that it will be harmful to Indiana’s business-friendly reputation.  According to this argument, businesses will not want to relocate to Indiana if it begins to be considered a discriminatory environment.

Patrick Mangan, the Executive Director of Citizens for Community Values of Indiana and an Ambassador for Alliance Defending Freedom, does not think this argument is valid.

“Forcing business owners to act against their deeply held first amendment protected religious beliefs has never been good for business,” Mangan explained to the Rover.  “Some of the very companies saying this is bad for business are holding and expanding their businesses in states with more recognition for traditional values than Indiana, while those same companies attack our values here.”

Garnett agrees: “These arguments are misplaced, in my opinion.  Again, they tend to assume that RFRA-type laws are focused on discrimination laws or on gay-rights issues.  They are not.

“They apply generally, and simply provide that in cases where burdens on religious exercise are unnecessary, it is appropriate for governments to provide accommodations,” he explained.  “The proposed law does not provide that religious objectors will win in any particular case; it simply creates a balancing test, one that—again—state and federal courts have been applying reasonably for years.”

Still other opponents assert that the protections for religious liberty in the First Amendment should apply only to individuals acting as such and not to businesses.  Mangan noted that last summer’s Supreme Court decision in Burwell v. Hobby Lobby invalidates this argument.

“In the Hobby Lobby case it seems clear that businesses do have rights of conscience.  And why wouldn’t they?  We want businesses to act in moral ways and we can reward them with our business when we agree and withdraw our business from them when we disagree.  But government mandated values are a tyranny,” Mangan argued.  “Why should we try to disenfranchise job creators of their constitutional rights to both believe and express their faith?  That wouldn’t make any sense in a free and open constitutional republic like the United States of America.”

Some observers doubt that the bill will survive a legal challenge from federal or state courts, but Philpott disagrees.  “There is reason to think that well-crafted legislation modeled on the federal Religious Freedom Restoration Act passed by the U.S. Congress can withstand judicial scrutiny,” he said.  “RFRA, after all, has survived.”

Garnett added, “It is settled law that legislatures may accommodate religious objectors through exemptions from generally applicable laws, so long as they do so in a way that does not discriminate in favor of some religious traditions or against others.”

Katelyn Doering is a senior political science major and philosophy, politics and economics (PPE) minor.  Contact her at