GenCon and the Indiana Religious Freedom Restoration Act

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Religious Freedom Restoration Act

 

Recently Indiana passed and the Governor signed the Religious Freedom Restoration Act.  By doing so Indiana joined a majority of states which have such protections for religious freedom. There is also a federal version of the act which was passed overwhelmingly by Congress in 1993 and signed into law by President Clinton.  Here are the operative sections of both the Federal and State Acts:

 

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

And here is the text of Indiana’s RFRA:

A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Go here for the complete text of the Act.  States enacted their own version of the statute because the Supreme Court in 1997 ruled rightfully that the federal act was not applicable to state laws or local ordinances.

What does this have to do with GenCon, the gaming convention held in Indianapolis that I and my bride have been attending since 1986?

Well, homosexual activists have been busily portraying this statute as a license to discriminate against gays, and the head of GenCon decided to get on this band wagon.  Go here to read the letter by Adrian Swartout.

The ignorance contained in the letter is simply stunning.   Swartout is apparently bone ignorant as to the federal version of the act and how many states have similar acts.  Swartout also is apparently  ignorant of the fact that the Act could only be used if a government seeks to discriminate against an individual or business on the basis of their religion.  The only possible applicability to homosexuals would be if a government sought to take action against a business that discriminated against gays.  The only businesses where such a contention would survive judicial analysis would be those where the owners could demonstrate that their religious beliefs forbid providing a service, such as baking a cake for a gay wedding.   The idea that this statute would have any impact on services provided to convention attendees in downtown Indie is simply farcial.  Of course all the hoopla about the Act has nothing to do with the law or facts, but everything to do with the flexing of political muscles by gay activists.  This tempest also demonstrates that religious freedom is simply not going to be tolerated by those who shriek loudest for tolerance.

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24 Comments

  1. What does this have to do with GenCon, the gaming convention held in Indianapolis that I and my bride have been attending since 1986?

    Really??? It’s always been my dream to attend GenCon someday…

    (plots to suck up to Don for lodging)

  2. I have three brief responses to hype and hysteria being flung by the gay gestapo and its lying, liberal (I repeat myself again) acolytes, “democracy” ; “The Bill Of Rights”; and “37-year-old Adam Smith is living on food stamps because he criticized Chick-fil-A in a video he posted on YouTube.”

  3. As a citizen of the Hoosier State, I have seen lots of contention and hollering but little in the way of intelligent discourse, for reasons that are probably obvious. This, of course, does very little to further my understanding of the situation. I am not blessed with a strong sense of abstract, and am in need of examples, much like learning from parables and acts.
    .
    It is worth noting that this contention is occurring at Easter, when we remember another mob that was led to hysteria by a self-serving core of power-mongers. I pray the conclusion of this contention stops short of that one’s.

  4. Find it kind of notable that you’re the first person I’ve seen quote the act. Everyone else just screams about how it’s going to do this or that…..

  5. You mean it’s not a compelling state interest to see to it that very special snowflakes are serviced by the vendor(s) of their choosing, regardless of the desire of the vendor(s) to serve very special snowflakes in the first place?

    I ask you, what’s the point of being a very special snowflake if you can’t always get your way by using the state to bully others?

  6. I caught a bit of Stephanopoulos’s interview with Mike Pence on the evening news yesterday, and it occured to me that “tolerance” (“acceptance” by another name) for homosexuality is rapidly become the modern-day equivalent to the pinch of incense offered to Caesar’s genius.

  7. I can see such legislation having far-reaching consequences.

    I wonder how this legislation would apply to (say) the prohibition of shechita, halal and other methods of ritual slaughter of unstunned animals, or to the importation of the products of animals so slaughtered.

    Would it invalidate a ban on the ritual circumcision of minors, or female genital mutilation?

    Would it prevent a ban on the wearing of the hijab or the kippa in public schools or the wearing of the burka in public places?

  8. I did give “approval” some thought. You’re certainly correct that the distinctions between “tolerance,” “acceptance,” “approval,” and “support” are collapsing.
    .
    I wonder what word will appear in the Newspeak Dictionary?

  9. I wonder how this legislation would apply….

    It all depends on how compelling the state’s interest in prohibiting those activities in the examples you gave is.

  10. Over at the Catholic League, Dr. Donohue reminds us that The Supreme Court in 1997, gave its approval of the RFRA. Probably to undo some of the ill effects of the Court having tried atheism under the penumbra of Freedom of Religion, obliterating and eradicating “or prohibit the free exercise thereof.” of the First Constitutional Amendment. What part of “the free exercise thereof” can atheism or anti-theists as they are beginning to call themselves constitutionally remove without three quarters of the states ratifying any change they impose?
    .
    Atheism is unconstitutional because it is completely opposed to every free person’s, every sovereign person’s choice of “the free exercise thereof.”
    .
    As unconstitutional as atheism is, the anti-theist must be tolerated and the First Amendment must be defended and understood as the freedom extended to all persons who are citizens, or taxation without representation is imposed, which is what is happening now with the Person of God evicted and rendered “persona non-grata” in the public square. Not the state, nor the Constitution gives sovereign personhood. Only God gives sovereign personhood. The state is constituted by sovereign persons to defend and protect the sovereign person.

  11. Man and his freedom are created by” their Creator”. Man is PROCREATED by man. The state is constituted by the sovereign personhood endowed by “their Creator.”
    .
    So, what can atheism give to mankind? I mean besides totalitarianism, unequal Justice, enslavement of man’s freedom and the obliteration of the people?

  12. Love thy neighbor as thyself. and the free exercise of religion will have the effect of : You are born, so the unborn must be born. You are circumcised as a male, you wear a burka, so you must allow others the same freedom. You are an atheist, so you must allow others to be theists. FREEDOM

  13. I agree that the hysteria surrounding this act is way over the top, but I am curious about an issue raised by some of its opponents, who claim that the Indiana RFRA is NOT quite the same as the federal RFRA or other states’ versions. They claim that the other acts only apply to governmental entities while the Indiana act applies also to private entities. Is there any truth to this assertion?

  14. “I agree that the hysteria surrounding this act is way over the top, but I am curious about an issue raised by some of its opponents, who claim that the Indiana RFRA is NOT quite the same as the federal RFRA or other states’ versions. They claim that the other acts only apply to governmental entities while the Indiana act applies also to private entities. Is there any truth to this assertion?”

    Very little. That section is to provide for what happens when a private party seeks to enforce a state law or ordinance against a party asserting the religious freedom statute. Here is the similar provision in the federal act:

    “(c) Judicial relief
    A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.”

    I would assert that the government, by creating or allowing private enforcement of the discriminatory act, is allowing the private party to stand in for the government and thus the RFRA act would apply against the private party.

    That point has been hotly litigated in Federal court as law professor Josh Blackman points out at his blog:

    “Third, and most significantly, the law provides a defense in a private suit where the government is not a party.The Indiana RFRA offers the following language:

    Sec. 9. 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

    In other words, the law provides a defense against a private discrimination suit. For example, Jill and Jane Doe sue a photographer for failing to photograph their wedding under a local non-discrimination ordinance. The photographer than raises the state RFRA as a defense. Even though the government is not a party, RFRA can be raised as a defense in the judicial proceeding. The court would have to determine whether the application of the non-discrimination ordinance substantially burdens the photographers exercise of religion.

    Does the federal RFRA also provide a defense? It depends on what Circuit you’re in. Shruti Chaganti writes in the Virginia Law Review about this split.

    The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.

    Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:

    Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.


    It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”

    RFRA by its terms does not apply to suits between private parties.

    Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate[] . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[] forward” with any evidence.[8] In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.[9]

    All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.

    This could prove interesting if this issue comes before the Court.

    Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.

    Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.


    And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).

    RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).

    It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.

    Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.

    In the Elane Photograph case, the New Mexico Supreme Court, interpreting its own RFRA, ruled that it could only be invoked when the government was a party, but not when private parties were sued by state law. The Indiana bill makes clear that the defense can be raised in any case, as have four courts of appeals covering nearly half the states in the Union.

    Interestingly, as noted in this amicus brief by the Becket Fund in the Elane Photography case, DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties:

    In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (‘RFRA’).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).

    So the most controversial aspect of the Indiana law was endorsed by the Holder Justice Department. [Update: I should stress that at the time, DOJ limited the applicability of RFRA to “religious organizations,” such as Wheaton College. But following Hobby Lobby this position is no longer tenable.]”

    http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/

  15. When there’s are so many states with similar with RFRAs and a Federal one, I have to wonder why single Indiana out? Could it be that this brouhaha is about politically destroying a conservative Republican governor? So that Mike Pence will never be a contender on a national Republican ticket? How better to do it than applying economic pressure on his state which in turns puts pressure on him. Standard Democratic M.O. to pull the race card or rainbow card. In this case it’s the latter.

  16. When there’s are so many states with similar with RFRAs and a Federal one, I have to wonder why single Indiana out?

    Because that was then and this is now. Because Democrats need to do something to gin up hatred fear and paranoia in order to keep their donors donating and their voters voting. Because “gay marriage” is in front of the Supreme Court. Any number of reasons.

  17. The Constitutional First Amendment: “or prohibit the free exercise thereof.” What part of “or prohibit the free exercise thereof” do these loudmouthed, dumber than doorknobs not read?

  18. “Because Democrats need to do something to gin up hatred fear and paranoia in order to keep their donors donating and their voters voting. Because “gay marriage” is in front of the Supreme Court. Any number of reasons.”

    So true. The constitutionality of same-sex marriage is before the US Supreme Court in late April. The decision should be handed down in June. The PR campaign for gay marriages has started with lies, hysteria, paranoia and boycotts.

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