Sept. 8, 2016
A recent NBC article about Indiana’s RFRA and its use by religious minorities (in addition to highlighting the ACLU’s ongoing hypocrisy on religious freedom) fails to accurately describe how RFRA operates.
At one point, the article states:
“One week later, after intense national criticism, Pence amended the law explicitly preventing businesses from denying service based on ‘race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military service.’ With this, the Indiana state law came closer to the federal religious law and similar laws in other states.”
This is false. The federal RFRA and almost all state RFRAs contain no such amendment. They’ve operated well for years, protecting individuals like the Muslim inmate highlighted in this article, and others.
The article also implies that RFRA without the “fix” could not help the inmate:
“After Pence’s “fix” the law became largely disarmed from doing what many critics said was its original discriminatory intent. In fact, the opposite happened, the law has since become an extra tool to fight against religious discrimination, [Professor] Katz said.”
Yet a Muslim inmate bringing a claim under RFRA with the “fix” is not the “opposite” of what he could have done before the “fix.” The provision of RFRA he is using to bring his claim (the same provision which has been around since 1993 with little controversy) was not changed at all. His claim is the exact same under RFRA with or without the “fix.”
To its credit, the article did accurately frame RFRA in this quote by another law professor:
“What people tend to forget is that the statute is not a ‘broad exemption or a get out of jail free card,’ he said. Even though there is an exemption for religious freedom under the law, it doesn't mean the state will grant it, he said.”
That certainly seemed lost on the media in the public debate last year. This balancing test has been a part of RFRA since its inception, and is true regardless of whether the “fix” is part of the law. If only everyone would take the time to understand this.