Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and director of the Program in Family Law and Policy at the University of Illinois College of Law. She spoke with News Bureau business and law editor Phil Ciciora about Indiana’s recently enacted religious freedom law.
Indiana Gov. Mike Pence signed a religious freedom bill into law and immediately had to defend the decision against critics who say the law undermines anti-discrimination laws. Can you explain the nuances of the law? Is it constitutional?
A religious freedom restoration act polices instances when the government overreaches and burdens religious belief or practice without good reasons for doing so. The classic example would be when the government says to Amish people that they can’t run their buggies with steel wheels on the road. The Amish can then use the law to fight back. So a religious freedom restoration act asks whether it’s necessary for the government to impact a religious community's beliefs, and it essentially tests whether the government should be more flexible and if it can avoid an adverse impact on religious belief or practice.
These laws are constitutional. Indeed, legislative enactments to protect religion were specifically contemplated by the 1990 U.S. Supreme Court case Employment Division v. Smith. So there is nothing inherently bad about laws that want to protect religions from governmental overreach.
Unfortunately, the move to enact these laws comes at a time of great social change. A federal court struck down Indiana’s ban on same-sex marriage last year, and because the ban was not repealed by legislation, the electorate, in some sense, finds itself unprepared. That’s why some in the religious community have latched onto religious freedom restoration acts as a way to preclude gay rights. But in a clash between nondiscrimination norms and religious beliefs, a litigant is almost certain to lose a claim that they should be exempt from nondiscrimination laws. This is so because legislation saying that society should not discriminate against the LGBT community in housing, hiring or public accommodations will be seen as a compelling interest trumping any religious claim. Because religious believers would lose in such a contest, Indiana’s new religious freedom law cannot undermine anti-discrimination legislation.
The real issue in Indiana is not the religious freedom law. It is the fact that the state does not provide protections in statewide laws for the lesbian, gay, bisexual and transgender community against sexual orientation discrimination in housing, hiring or public accommodations. That is the real travesty that should be addressed.
In public comments defending the law, Gov. Pence noted that the state of Illinois also has a religious freedom restoration law on the books. How does Illinois’ law, which was enacted in 1998, differ from Indiana’s new law? How is Indiana’s new law different from or the same as other states’ laws?
Illinois’ law is substantially similar to Indiana’s new religious freedom law, but it was enacted in a far different time and on the heels of the federal religious freedom and restoration act.
But Illinois followed its law with sexual orientation nondiscrimination protections in 2004, giving the LGBT community protections that the rest of us simply take for granted. Indiana state law does not give the LGBT community those needed protections – as I believe it should.
A lot of attention has been paid to the fact that Indiana’s religious freedom law defines a person broadly. The U.S. Congress did not define the term “person” when it enacted the federal religious freedom and restoration act, and the meaning of “person” was at the heart of the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby. Some see the Indiana Legislature’s decision to define personhood as harmful. Yet it is to be expected that a legislature would want to define that term after the protracted litigation that ended with the Hobby Lobby case.
Some also attack the Indiana definition as overly broad. While the definition is expansive, a litigant still has to show a substantial burden. As an entity seeking protection under a religious freedom law gets bigger in size, it becomes progressively harder to see how a government regulation or rule substantially burdens the owner’s religious beliefs. Thus, a company may get their day in court under this definition, but it may lose nonetheless.
Recently, you were a key advisor on Utah’s landmark anti-discrimination legislation. Can we look to the “Utah compromise” as a model for the future of anti-discrimination legislation?
At times of great social change, it is far better to find ways to live together in peace, without one person’s rights coming at the expense of another – or being seen as a way to stave off another’s rights. Utah, arguably the most “red” state in America, provided protection for the LGBT community that far surpasses what even New York provides. But in providing landmark protections, the Utah Legislature also gave important protections for religious believers and faith communities. Protecting both sets of civil rights in the same set of legislation makes it clear that the extension of protections to the LGBT community need not wash out the uniquely religious character of faith communities.
More than anything, the lesson of Utah and Indiana is that balancing religious liberty with protections for the LGBT community is not only right and decent, but it’s also the key to calling a truce in the relentless culture war that roils our country. Indiana should follow Utah’s example and extend protections to the LGBT community, while speaking to how faith communities can maintain their character at a time of great change.