How Indiana’s Religious Freedom Act Will Backfire

I’m glad Governor Mike Pence signed Indiana’s Religious Freedom Act (RFA). The law is intended to allow businesses to discriminate against homosexuals. However, the RFA’s text is so broad the RFA could backfire on the conservatives passing the act.

The RFA actually doesn’t mention homosexuality or sexual orientation anywhere in its text. Instead, the RFA states that governments cannot impose any law that would substantially burden a person’s religious exercise without a compelling government interest. In English, the government cannot force a person to obey a law if that law would place a heavy burden on that person’s religious practice unless the government can show it has a very good reason for enforcing that law. Note that the RFA counts businesses as people.

Businesses that want to discriminate against homosexuals may do so if: 1) The business has a religious belief against homosexuals, 2) The government cannot give a very good reason for why it wants to force that business to violate its religious beliefs, and 3) The government cannot show that the violation of the business’s religious beliefs is the least restrict means of enforcing the law. The real twist is that the RFA can be invoked as a defense against a private lawsuit.

For example, a florist operates her flower shop as a sole proprietor. The florist refuses to sell flowers to two men who are getting married because the florist believes the Bible prohibits same-sex marriage. The couple sues the florist for discrimination. The florist can invoke the RFA and argue that the court cannot force her to serve the couple because it would be a violation of her religious beliefs.

The RFA Will Backfire Enormously

The RFA is written broadly so that a court wouldn’t void a law based on discrimination against homosexuals. Although the RFA avoids that problem, writing the law broadly means that other people can use the law for unintended purposes. After the Supreme Court ruled Hobby Lobby was exempt from Obamacare, Satanists attempted to exempt abortions from informed consent laws based on their religious beliefs. The same idea could be used to twist the RFA so that the conservatives who passed the RFA will come to despise the very law they enacted.

The ideas are endless. A restaurant could refuse to serve gun owners because the restaurant’s religious pacifism prevents it from serving gun owners. High school and university libraries could refuse to handout creationist textbooks because such textbooks violate the librarian’s belief in evolution (evolution is not based on religion, but creationists don’t recognize the distinction). Abortion clinics could serve women and ignore all criminal statutes against abortion by asserting the clinic has a religious belief that fetuses aren’t people.

Many people are currently protesting the enactment of the Religious Freedom Act. Governor Pence and state legislators probably won’t overturn the RFA, even if the law would cost the state millions of dollars from large organizations boycotting Indiana. However, the best way to protest the RFA is to use it in a way Governor Pence and other Republicans won’t expect the law to be used.