The Indiana Religious Freedom Restoration Act (RFRA) gained nationwide attention during the 2015 legislative session.
The Indiana Association of Home Educators (IAHE) testified in favor of Senate Bill (SB) 101 because religious freedom is one of two pillars (the other is parental rights) that allow homeschoolers to remain free of burdensome government regulation.
The RFRA is not about giving a license to discriminate. Rather, it is a balancing test the courts must use when deciding free exercise of religion claims. It is always used as a defense (shield) in a lawsuit, but never determines the final outcome. The religious person is not always the defendant (for example, in prison cases, the religious person is the plaintiff). It means it can be invoked only when a government entity’s statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage allegedly infringes upon a person’s free exercise of religion.
The RFRA establishes what is known as the “strict scrutiny” test to determine if government may substantially burden a person’s free exercise of religion by requiring the governmental entity to demonstrate that (1) the statute, ordinance, etc. is in furtherance of a compelling government interest and (2) it is the least restrictive means of furthering that compelling governmental interest. In other words, the government entity must find both a compelling reason for the rule and that rule must be the least restrictive way to accomplish it. The mere fact that the rule applies to everyone and is not aimed solely at restricting a person’s free exercise of religion doesn’t matter.
The Indiana law allows a private party lawsuit only if there is a government statute, ordinance, etc. that substantially burdens the free exercise of a person’s religion; however the government does not have to be a party to that lawsuit for an individual to assert the RFRA defense. The government has an unconditional right to intervene in that private lawsuit in order to defend the law in question. You would never use the RFRA in a civil or criminal suit if no government action was involved that prohibited a person from exercising his or her religious freedom.
The RFRA only allows relief against the government entity – not between private parties – and only if the court finds a government action violated a person’s or an entity’s religious freedom. “Relief” means a court can grant declaratory or injunctive relief, or compensatory damages, or both. If the person prevails against the government, the court may also order the government to pay the cost of litigating the case.
A “person” is defined as an individual, a religious organization or group operated primarily for religious purposes, or a for-profit or not-for-profit entity that practices a religious belief held by one or more individuals who control and have substantial ownership of that entity. Examples would be a Catholic hospital, a closely-held company like Hobby Lobby, a larger company if it fits the definition, and even IAHE. Homeschool support groups and co-ops might fall into this definition, either as a group operating with a religious purpose or as a non-profit that practices a religious belief.
The “Compromise” to the RFRA Law
Shortly after Governor Pence signed SB 101 into law, it was modified by SB 50 which we will call the “compromise.” This compromise states that the RFRA does not: (1) authorize a provider (defined below) to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or US Military service, and (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to do those things in number one above.
In other words, the RFRA cannot be invoked as a defense in certain discrimination cases, but keep in mind a government law must still be in place. This section removes the RFRA defense in certain circumstances; however, it does not grant civil rights protections to anyone! That can only be done through federal, state, and local civil rights laws.
Since there is no statewide ban on discrimination based on sexual orientation or gender identity, this only applies to the localities (currently thirteen) where ordinances are in place. So in areas of Indiana where there are no local ordinances, there would be no use for the RFRA defense since there are no laws prohibiting discrimination based on sexual orientation or gender identity. But this law goes beyond sexual orientation and gender identity, so it is important to understand state and local Civil Rights laws with regard to discrimination and the situations listed above.
So, while the RFRA was never about discrimination and gave no license to discriminate, it quickly became a political football by some to say that it was. Now that SB 50 was passed, the RFRA carved out one area of law, our civil rights laws, where the RFRA defense can no longer be used.
However, it is important to note that the RFRA can still be used in many other situations when government actions infringe on a person’s or an entity’s free exercise of religion. More importantly, even in civil rights actions, the compromise did not remove a person’s constitutional right to assert a claim that a governmental entity’s statute, ordinance, etc. infringes upon a person’s or an entity’s religious freedom. The Indiana and federal constitutions remain intact!
One important note is that the compromise defines “provider” as one or more individuals, partnerships, associations, organizations, LLC’s, companies, corporations and other organized groups of persons (emphasis added). Homeschoolers and groups of homeschoolers might under some circumstances fall into this definition.
However, it excludes a church or “other nonprofit religious organization exempt under 26 USC 501(a)” which includes a broad category of federal tax exempt groups. It also excludes an individual such as a minister, rabbi, or priest when he or she is engaged in a religious or educational function of the church or other nonprofit religious organization or society. Homeschool groups might be excluded as a “provider” if they have taken steps to become a “nonprofit religious organization” and by qualifying and maintaining their tax exempt status under federal law.
Implications of the “Compromise” on the RFRA Defense
- No person or entity has lost his, her, or their free exercise of religion rights under the United States and Indiana constitutions. Even if a person cannot use the RFRA defense in certain state law or local ordinance matters, he or she is still able to sue the government or another individual when a government action infringes upon his or her free exercise of religion. Nothing has changed with regard to current law, and nothing in the original bill or compromise bill changes this fact.
- This law does not give any civil rights protections to classes of people that are not already protected under current law. It does, in certain cases, remove the RFRA defense where state or local civil rights laws are in place.
- This law does not give a person a right to a private cause of action unless a government law or action is involved. Then and only then can a RFRA defense be raised.
- This law, as amended, could result in more litigation to test the boundaries of the RFRA law and the boundaries of when the RFRA defense can and cannot be invoked.
- Indiana has not had many free exercise infringement claims. Current Indiana court cases do not spell out any clear standards to determine when government laws infringe on a person’s free exercise of religion or religious conscience under the State Constitution. The Indiana State Supreme Court has been and always will be the final arbiter in such matters.
RFRA is still a good law because it spells out the standards that a court must use (except when RFRA is not allowed to be used) in a free exercise of religion case. The compromise has some potential problems for homeschoolers, although they are not detrimental because no one’s Constitutional rights have been removed or criminalized. Every person and entity whether for-profit or not-for-profit who believes government is infringing upon their free exercise of religion continues to have the right to bring their claim before a court in Indiana (or federal court when a federal issue or law is involved).
Most people will continue to homeschool without giving the RFRA or the compromise much thought. However, this is the time for homeschool support groups and co-ops to seek legal and accounting assistance to make sure your group is in compliance with all local, state, and federal laws. IAHE believes this law has spotlighted God’s mercy in allowing homeschoolers, homeschool support groups, and homeschool co-ops to get their houses in order. An ounce of prevention is worth a pound of cure.
The information contained in this article (i) is intended for consideration by the general public and is not intended to convey or constitute legal advice, (ii) does not create or constitute an attorney-client relationship, and (iii) is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any information contained herein without first seeking qualified legal counsel on your specific matter.
Camille Cantwell graduated summa cum laude with a degree in Journalism and Political Science. She worked for the Wisconsin State Assembly and Governor Tommy Thompson until 1989. She received her law degree at Regent University and was admitted to practice law in Indiana in 1993. Her license is currently on inactive status. She and her husband David homeschool their two high school-age sons.