Twenty states and the federal government have passed laws similar to the Religious Freedom Restoration Act, the Indiana measure that suddenly has roiled politics in the Hoosier State and beyond and has become the latest front in the culture wars.
The laws have in common a stated intention to protect religious liberties that could be impacted by government action. But not all are the same, and the differences can matter.
Here are a few key things to know about this controversy:
Q. What’s it all about?
A. Indiana Gov. Mike Pence and other supporters contend that their new law prevents the government from intruding on an individual’s right to express religious beliefs. Critics say it opens the door to allowing discrimination against gay, lesbian, bisexual and transgender people.
Q. Where did the Religious Freedom Restoration Acts come from?
A. Peyote, in part. In the 1980s, two Oregon men were fired from their jobs with a private drug organization because they ingested peyote as part of their sacred obligations as members of the Native American Church. The state denied them unemployment benefits on the grounds they had been fired for misconduct.
The Supreme Court, in a 1990 decision authored by conservative Justice Antonin Scalia, declared that the First Amendment’s religious protections don’t override “the obligation to comply with a valid and neutral law of general applicability.” As long as a law doesn’t explicitly favor or target religion, Scalia reasoned, it can be enforced even if it burdens someone’s religious practice.
Congress responded in 1993 by passing the Religious Freedom Restoration Act. States began passing their own versions after the high court clarified in 1997 that the federal law did not apply to them.
Q. What do the laws say?
A. All are built on a similar foundation. The federal version puts it this way: Government may “substantially burden a person’s exercise of religion” only if it demonstrates a compelling governmental interest” and is “the least restrictive means of doing so.”
The Missouri religious freedom law says government actions must be “essential” to serving a compelling governmental interest and may not be “unduly restrictive.” The Indiana law echoes both ideas.
Q. Pence says the various versions of the law have been bipartisan and noncontroversial. Is he right?
A. Pretty much. The federal legislation passed unanimously in the House of Representatives and by a 97-3 vote in the Senate and was signed into law by President Bill Clinton, a Democrat. State versions also have sailed through, and though Southern legislatures have been more likely to pass the statutes, true-blue Northern states like Illinois and Connecticut have done so as well.
Florida’s Religious Freedom Restoration Act of 1998, for instance, was supported by an unusual alliance, including the American Civil Liberties Union and the Christian Coalition.
Q. So what’s all the fuss about in Indiana?
A. Indiana’s legislation was written after the Supreme Court ruled in the high-profile Burwell v. Hobby Lobby case, in which a corporation used the 1993 federal law to challenge a contraception requirement in the Affordable Care Act. The court, for the first time, ruled that the federal Religious Freedom Restoration Act extended beyond individuals to include “closely held for-profit corporations.”
With that background, Indiana lawmakers specified that their law covered, in addition to individuals, organizations as well as “a partnership, a limited liability company, a corporation, a company, a firm, a society (and) a joint-stock company.”
Indiana’s law also differs from a number of others by specifying that the religious objections may be raised as a defense in a “judicial or administrative proceeding,” whether or not a government agency is involved. This broadens the coverage to include private actions.
Anita Kumar and Lesley Clark of the Washington Bureau contributed.