Why The Atlantic Is Wrong about Indiana's Religious Freedom Law | The Weekly Standard

Why The Atlantic Is Wrong about Indiana's Religious Freedom Law | The Weekly Standard

Garrett Epps writes at The Atlantic that I am wrong to say there aren't "significant" differences between the federal Religious Freedom Restoration Act (RFRA) and Indiana's RFRA.

According to Epps, who teaches creative writing and constitutional law at the University of Baltimore, there are two major differences between the Indiana law and the federal law. "First, the Indiana law explicitly allows any for-profit business to assert a right to 'the free exercise of religion.' The federal RFRA doesn’t contain such language," writes Epps. "Second, the Indiana statute explicitly makes a business’s 'free exercise' right a defense against a private lawsuit by another person, rather than simply against actions brought by government."

"I am not sure what McCormack was thinking," writes Epps, referring to my claim that there aren't any "significant" differences between Indiana's RFRA and the federal RFRA.

If Epps could have continued reading just a bit longer, he would have discovered that I back up this claim by directing readers to the writings of University of Virgina law professor Douglas Laycock, Stanford University law professor Michael McConnell (a former federal judge on the Tenth Circuit Court of Appeals), and South Texas law professor Josh Blackman: "Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)"

In an email to THE WEEKLY STANDARD, University of Virginia law professor Douglas Laycock explains why the Indiana RFRA's inclusion of corporations isn't really different from federal RFRA:

On corporations: The United States has what is commonly known as “The Dictionary Act.” At the very beginning of the United States Code (Title 1, section 1) is a series of definitions. As used in this Code, unless the context otherwise requires, these words have the following meaning. The federal RFRA protects every “person,” and the Dictionary Act defines “person” to include corporations. Most states have the same sort of Dictionary Act, and the same definition. In Indiana, they put it directly into the RFRA, presumably because of the litigation culminating in Hobby Lobby. That’s not really a difference.

Epps wrote that a "lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage." What Epps doesn't acknowledge is that only two of the nine Supreme Court justices (Sonia Sotomayor and Ruth Bader Ginsburg) dissented from the majority opinion's holding that closely-held coporations may defend themselves under federal RFRA (Kagan and Breyer didn't take a position).

As for Epps's claim that the Indiana RFRA differs from the federal RFRA in allowing people to defend themselves in private lawsuits, Josh Blackman points out that there hasn't been unanimous agreement, but "four federal courts of appeal and the Obama Justice Department have all taken the position that [federal] RFRA can be used as a defense in private suits."

So I stand by my original claim that these two features of the Indiana law cited by Epps are not significantly different from the federal law.

But does Indiana's RFRA differ from other state RFRAs?

Epps points out that the New Mexico Supreme Court did not allow a RFRA defense in a private lawsuit, and he suggests that Texas is the only state besides Indiana that allows such a defense. But Stanford's Michael McConnell has argued persuasively that other state RFRAs cover private lawsuits: "The New Mexico RFRA specifically covers action by 'a government agency.' The Arizona RFRA applies to all action by 'government' and extends to 'all state and local laws and ordinances and the implementation of those laws and ordinances.' Courts are not agencies, but they are an arm of government. 'All' law includes common law; civil suits are a means of implementing and enforcing law."

It is worth noting that the Illinois RFRA--which Barack Obama voted for as a state senator--also applies to all state and local laws: "This Act applies to all State and local (including home rule unit) laws, ordinances, policies, procedures, practices, and governmental actions and their implementation, whether statutory or otherwise and whether adopted before or after the effective date of this Act."*

So how did the confusion arise as to whether or not RFRA applied in private lawsuits in New Mexico? In his email to TWS, Douglas Laycock explains:

On private lawsuits, the federal RFRA was clearly intended to provide a possible defense (subject, as always, to the compelling interest test) when a religious organization or believer is sued, whether by a government or a private citizen. The statute specifically mentioned relief against a government, because of concerns about sovereign immunity (the rule that you usually can’t sue a state). And that created an ambiguity; did it mean only against a government?

Most states copied the federal language, and copied the ambiguity. And the New Mexico Supreme Court took advantage of that, and said no RFRA defense in a suit by a private citizen. So the Indiana bill addresses that ambiguity. If your church is feeding the homeless, and the neighbors don’t like it, it really doesn’t matter whether you get sued by the neighbors or by the city.

The New Mexico court was clearly hostile to the religious claim, rejecting every argument she made; if it had not had the ambiguity about private lawsuits, it would have just found a compelling government interest, which is what the state trial court in Washington did in the florist case. And what the Minnesota Supreme Court did thirty years ago in the only reported case of a business claiming a religious justification for discriminating against gays just because they are gay.

It's unfortunate that Epps didn't make any effort to respond to the arguments made by McConnell, Laycock, or Blackman. Perhaps a public debate is in order. Isn't that what C-SPAN is here for?

*Update (11:40a.m.): Here's Michael McConnell's analysis of the Illinois statute:

Here is the relevant part [of the statute]:

If a person's exercise of religion has been burdened in violation of this Act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government. A party who prevails in an action to enforce this Act against a government is entitled to recover attorney's fees and costs incurred in maintaining the claim or defense.

It allows the person to assert RFRA as a claim or defense in any judicial proceeding, but seems to authorize appropriate relief only against a government. That seems to suggest RFRA can be asserted as a defense in a lawsuit brought by a private person, but not to allow suits by RFRA claimants against other private parties -- or at least, not to get relief. Perhaps a RFRA plaintiff could get a declaratory judgment that a particular act violates RFRA.

This does not make much sense. What it really might mean is that RFRA plaintiffs cannot obtain affirmative relief such as damages against private parties, but only protective relief like an injunction. In any event, the hypothetical cases people have been raising involve RFRA claimants being sued by other persons who want to compel them to take actions contrary to their religion.

The second sentence reinforces the idea that RFRA applies to lawsuits between private parties, because if it did not, there would be no need to restrict attorneys fees to those cases involving government.