What's so different about Indiana's RFRA?

Subtle differences, state law among main issues

INDIANAPOLIS - Indiana faces potentially the worst public relations crisis in its history over the Religious Freedom Restoration Act – a piece of legislation already enshrined into law by the federal government and 19 other states.

Gov. Mike Pence signed the law into effect Thursday in a low-key, private ceremony at the Statehouse.

When he left, a firestorm of controversy awaited him.

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Opponents assert that the law is a license to discriminate. Prominent members of the LGBT community have asked if they are no longer welcome in Indiana. Millions of dollars in potential business investment in the state have been pulled over the law by companies like Salesforce and Angie's List.

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And yet, the lingering question remains – what's so different about Indiana's law? According to one lawyer, the answer is simple: Indiana.

"In some respects, the law is almost identical," said Matthew Anderson, an attorney for Wruble and Associates in South Bend. "I think that's the problem to this issue. It requires a nuanced response."

Pence has said repeatedly that the law is modeled after the one signed by President Bill Clinton in 1993 with near-unanimous support of the U.S. House and Senate. And, Pence says, 19 other states, including Illinois, already have their own versions of the law.

"I think it's a little misleading to say we just modeled it after the federal law," Anderson said. "If your case law was the same, and the protections were the same, then you could say that. I don't want to say it's dishonest, but it's not completely accurate."

For one thing, Anderson said, Illinois has protections for LGBT individuals written into its civil rights statute. Of the now-20 RFRA states, at least four have non-discrimination laws that specifically cover sexual orientation and gender identity: Illinois, New Mexico, Connecticut and Rhode Island.

"This Week" host George Stephanopoulos asked Pence on Sunday if the governor would consider adding LGBT protections to Indiana law as a means of quelling criticism of RFRA.

"That's not on my agenda," Pence said.

WATCH | Gov. Pence's full interview on 'This Week' with George Stephanopoulos

Anderson said that Pence and other Republican lawmakers' unwillingness to add non-discrimination protections for LGBT individuals, as well as Attorney General Greg Zoeller's history of supporting same-sex marriage bans (Zoeller went "state to state" filing briefs in support of such laws before the 7th Circuit Court threw out Indiana's own ban, Anderson notes), is likely fueling the LGBT community's interpretation of the law as allowing for anti-gay discrimination.

"I think the concern is that, given the climate and given the laws of the state, it is a lot more likely that the ruling would go in favor of a religious objector," Anderson said. "As far as the LGBT community is concerned, I don't think their fears are unreasonable. It puts a lot in the hands of a private citizen to make a religious objection."

Anderson and Pence do agree on one point: RFRA does not enshrine the right to discriminate into Indiana law.

"Does it allow it? No. It doesn't allow it explicitly," Anderson said. "What it allows is for the court to answer that question. And, given the laws of the state, allows the answer to that question to be given in favor of the person asserting their religious objections. But it's not an outright license to discriminate."

'Almost identical'

As Anderson notes, attempting to explain the subtle differences between Indiana's RFRA law and that adopted by other states runs the risk of devolving into head-spinning legalese.

In a post to his personal blog, Anderson said he attempted to break down the issues to provide people without legal backgrounds the chance to understand the differences for themselves.

READ | The Indiana Religious Freedom Restoration Act – An Analysis of Its Controversy

Among the important differences: Indiana's RFRA law allows for a much broader definition of the "exercise of religion," and it allows a RFRA defense to be raised regardless of whether the state is involved.

Anderson said the latter change seems aimed at addressing situations like a New Mexico case in which a photographer was unable to mount a RFRA defense, despite refusing to photograph a same-sex commitment ceremony on religious grounds, because the state was not a party to the case.

"I think it, probably more than the federal counterpart or any other state counterpart, allows the dispute to remain between individuals," Anderson said.

That runs in

contrast to claims made by Pence, who has said the law isn't about individuals, but rather "simply applies to government overreach."

And, unlike laws in other RFRA states, Indiana's law allows individuals to ask courts for relief without having to show any actual harm.

"One critical difference in Section 9 is you can have an issue that hasn't even come up yet, but you have reason to believe it will come up, and you can ask a court to make a judgment in that sense," Anderson said.

The sum of all the differences between Indiana's RFRA law and that of other states? Getting it into a courtroom, Anderson said.

"This law is, I would say engineered, almost, to get through the courts quickly," Anderson said. "The fact that you can claim prospective relief, whereas usually you have to show you've actually been hurt before you can file a lawsuit."

In a press conference Thursday, the governor responded to repeated questions from reporters about whether the law could be used to refuse service to gay customers by saying it was "a question for the judiciary."

"If the governor is saying that a court is going to decide it, I think that's pretty clear," Anderson said. "You have an open-ended statute that is probably the most conducive toward generating a favorable ruling for religious objection. And this is probably one of the better states to get a favorable ruling."

Anderson said he wouldn't be surprised to see the first RFRA case filed soon after it takes effect in July – likely as a challenge to an LGBT-inclusive non-discrimination ordinance. Such laws are on the books in Marion and Monroe counties, as well as the cities of Indianapolis, Bloomington, Evansville and South Bend.

As far as the law's effect on the reputation of the state, Anderson said its timing couldn't have been worse.

"The state got embarrassed last year by the 7th Circuit," Anderson said. "They basically took their argument against gay marriage and they got a pretty heavy-handed response. And the same people who introduced this law were the same ones who tried to put a gay marriage ban in Indiana's constitution. It's not a coincidence."

Republican lawmakers held a press conference Monday morning to announce plans to "clarify" the law -- but didn't offer any specifics as to how they would seek to accomplish that.


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