Upon the request of a member of the Indiana legislature, Columbia Law Professor Katherine Franke crafted an analysis of the proposed “Religious Freedom Restoration Act” bills pending before the Indiana legislature. The letter gained thirty signatures, many who are law professors at Indiana University and provided careful analysis of the bills in light of Indiana and federal religious liberty law . The analysis stresses that:
- Religious freedom is a fundamental American value enshrined in the Indiana Constitution. But the proposed legislation could undermine those values and result in harmful consequences.
- The proposed Indiana RFRA would unsettle a well–reasoned harmony struck by Indian courts between rights to religious liberty and other fundamental rights – as such, this is not a modest proposal but instead could have radical consequences and will unleash a wave of litigation.
- Such harmful consequences could include employers, landlords, and corporations taking the law into their own hands and arguing that their religious beliefs allow them to avoid complying with laws that apply to everyone else. This will likely result in a flood of lawsuits.
- The right to religious liberty, like most fundamental rights, is not absolute. The law is very clear that religious liberty rights secured under state RFRAs or under the Indiana or U.S. Constitutions cannot be secured by shifting material costs to third party rights-holders. The proposed legislation should not be enacted because it does not limit the scope of religious liberty rights in cases where they undermine other important rights to public health, equality, or security.
- For instance, when a state police officer sought an exemption from working as a riverboat gaming agent because he had a religious objection to gambling, an Indiana court rejected this challenge, the Indiana Court of Appeals noted that, “law enforcement agencies need the cooperation of all members…Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical.”
- In a Supreme Court case, an Amish employer challenged on religious grounds the requirement to pay Social Security taxes on behalf of his employees. The court rejected the exemption, noting the harm it would impose on others.
- Some supporters of the proposed RFRA have argued incorrectly that the language of the proposed Indiana RFRA is the same as the federal RFRA and as such the Indiana law should gain bipartisan support, just as the federal RFRA did in 1993.
- In fact, many original supporters of the federal RFRA, including members of Congress who voted for the law and advocates who supported it, have withdrawn their support for the federal RFRA because it has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law.
The letter is available here.