Indiana & Arkansas' RFRAs Are Not Like The Others

The state of Indiana has been under fire since last Thursday, when Governor Mike Pence signed the Religious Freedom Restoration Act. Now, Arkansas has also received backlash as it passed a similar bill on Tuesday. Although the spotlight is currently squarely on Indiana and Arkansas, now 21 states have passed a Religious Freedom Restoration Act since it was first introduced as a federal law in 1993. But anyone who uses that as an argument against the critics is neglecting certain provisions in Indiana's bill that reveal very different intentions from the original federal Religious Freedom Restoration Act.

The Religious Freedom Restoration Act is designed to protect businesses from being penalized for refusing service to individuals based on their sexual orientation, because that is their "religious freedom." After Pence signed the bill last week, numerous companies have issued statements opposing it, state legislators are banning state-funded travel to Indiana, and the public has been furiously protesting what feels like a major step backwards for our society. As lawmakers in Indiana try to clarify the provisions in their bill, legislators in Arkansas passed a similar law on Tuesday, prompting similar protest and opposition from companies in that state. Governor Pence's signing of the highly controversial bill in Indiana might have sparked a national debate recently, but the Religious Freedom Restoration Act has been around for more than 20 years.

The Religious Freedom Restoration Act (RFRA) was introduced in 1993 by Democratic Senator Chuck Schumer, who was representing New York's 9th congressional district at the time. After passing a unanimous vote in the House and a nearly unanimous vote in the Senate, the bill was signed into law by Democratic President Bill Clinton. In 1997, as a result of the case City of Boerne v. Flores, the Supreme Court ruled the federal act unconstitutional as it applied to the states. Thus, individual states have signed their own RFRAs that are meant to echo the federal law. These states include:

• Alabama
• Arizona
• Arkansas
• Connecticut
• Florida
• Idaho
• Illinois
• Indiana
• Kansas
• Kentucky
• Louisiana
• Mississippi
• Missouri
• New Mexico
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• Tennessee
• Texas
• Virginia

However, the existence of RFRAs in other states does not diminish the criticisms leveled against Arkansas and Indiana's bills. That's because Arkansas and Indiana's RFRAs include language that makes it distinctly different from the federal bill. According to The Atlantic, Indiana's bill allows for-profit businesses the right to "the free exercise of religion," similar to how individuals and religious institutions do. In other words, companies can establish policies based on the owners' religious beliefs — as we've seen with the federal Hobby Lobby case.

Indiana's bill also states:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

This means that businesses will be protected from not only administrative proceedings by the government, but also lawsuits by individuals. This second provision was likely added to prevent a similar case to New Mexico's Elane Photography v. Willock from happening in Indiana. In that case, a photography studio tried to use RFRA in defense when a same-sex couple sued the studio for refusing services. However, since the government was not a "party" in the proceeding, the state's supreme court said the RFRA did not apply.

The federal bill's original author, Schumer, has also spoken out about the disparities between his bill and the one Pence signed. Schumer wrote in a statement on his Facebook page:

In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law "simply mirrors" the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993.... In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.

First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.

Anyone who is using the federal RFRA as justification for Arkansas and Indiana's bills — and, even more importantly, anyone who still believes that their RFRAs do not allow discrimination — should stop to examine this overwhelming evidence to the contrary. Images: Getty Images (4)