Religious Freedom Restoration Act (Indiana): Use of Religion as a Cudgel and Shield for GOP’s Political Policy Preferences

[Update (April 3, 2015): The State of Indiana has revised IC-34-13-9 so that the law would not affect “services, use of public accomodations, goods, employment, or housing on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” (See Indiana Senate Enrolled Act No. 50, 2015 session.)]

It appears that the Republicans (GOP) has the mindset of using religion to cover for unpalatable policy preferences. In the Indiana Religious Freedom Restoration statute, IC-34-13-9, effective July 1, 2015, religion is defined broadly (section 5 of the statute) as is the definition of person (section 7 of the statute). With these two broad definitions, this statute could be used as the vehicle to oppose (or support) policy that the GOP opposes or supports. [In contrast, the federal Religious Freedom Restoration Act, P.L. 103-141, is specific (addresses particular Supreme Court decisions).]

These religious freedom bills destroy the meaning of religion in order to use “religion” as a political instrument. Section 5 of the Indiana law is so broad such that any claim of “religion” is enough to trigger the law against a disfavored government policy. Seemingly, the disfavored policies could be those which conflict with GOP tenets (for example, the Affordable Care Act, or ObamaCare (Indiana uses the federal marketplace.)).

The statute’s weakness is its vagueness. This same vagueness makes it a strong vehicle for “religion-” based policy preferences.

The logical structure appears to be the following:

GOP policy preference is not palatable with the broad society, thus there should be a mechanism to enforce that preference through an alternative means. For example, the vehicle in this case is “religious freedom.” (The logical structure is explained through the chart below.)

GOP logical argument Indiana Religious Freedom Restoration Statute, IC-34-13-9
Free exercise of religion is protected by the First Amendment of the U.S. Constitution.
Religious beliefs are also Constitutionally protected.
Religious beliefs belong to persons. Sec. 7: “As used in this chapter, ‘person’ includes the following: (1) an individual, (2) an organization, religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes, (3) a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and may be sued, (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.”
Those religious beliefs may have policy preferences deriving from that belief, which should also be protected.
These preferences may include preferences similar to those of the GOP. Sec. 5: “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
If so, that religious belief AND its derivative policy preferences should be Constitutionally protected.
Religious Freedom Restoration statutes recognize the tie between religious belief and its derivative policy preferences.
(But the concern is only for government.) Sec. 11: “The chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.”

The problem with the GOP’s use of religion is that it disrespects religion in order to use it as a policy weapon exclusively in order to force GOP policy preferences on the society. This activity is unfortunate, but policymakers must be aware of the technique, especially when crafting legislation.


2 thoughts on “Religious Freedom Restoration Act (Indiana): Use of Religion as a Cudgel and Shield for GOP’s Political Policy Preferences

  1. I believe the backlash is unfair because my interpretation is that if, for example, an athletic team chooses to pray before a game or a group of residents in a community home choose to do a bible study as a group, they should be permitted. That right is expressly permitted under the constitution’s freedom of religion act. However the team that chose to pray was told not to because it offended some people. The bible study group in the community home was threatened to be arrested if she did not stop….so, just who are the opponents of Indiana freedom act offending. Are they afraid their rights to have these people stopped will be affected?


  2. The law should not depend on each person’s interpretation. One person may be conscientious; another may have wickedness in his or her heart.

    The law itself must lay out, with specificity, to which situations it will apply (like the federal RFRA does). In addition, when a “person” can be a LLC, corporation, etc. (see section 7 of the Indiana RFRA law), I begin to doubt the good will of those who passed this legislation.

    As the Indiana RFRA law stands now, the law’s inherent weakness is vagueness, which makes the Indiana RFRA a stealth vehicle to oppose all manner of policies if they conflict with a GOP policy preference.


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