Editor, Times-Union: Let’s clear the air about why the Indiana Religious Freedom Restoration Act (RFRA) is not the same as the Federal RFRA. The Federal version, as stated in U.S. Code Title 42, Chapter 21B, §20000bb-1, states as follows: “ (a) In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person- (1) Is in furtherance of a compelling governmental interest; and (2) Is the least restrictive means of furthering that compelling government interest. (c) Judicial Relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.” All this seems well and good and within the spirit of the First Amendment. The Indiana RFRA, noted in Section 1.IC34-13-9 as a new chapter, contains identical wording to the Federal law parts (a) and (b) noted above. In the judicial relief section, however, which is given in Sec. 9 of the Indiana Code, there is a substantial difference, and one that Mr. Gerard apparently failed to notice in his opinion piece. This part states: “Sec. 9. A person whose exercise of religious has been substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.” The key difference is that the law appears to expand this protection to what occurs between two private parties. Does this mean that you or I can now be sued by someone else who believes their religious freedom has been substantially burdened? If I own a store can I be sued by missionaries if I won’t allow them to leave their pamphlets out for my customers? If I am a Muslim can I sue my dentist for playing Christian music while I am there as a patient? The last sentence also makes me uneasy. It appears to suggest that the government may jump into a dispute between two private citizens and take sides. Is this what we want? That seems like government overreach to me. Lastly, what I find most troubling about this entire debate is that there seems to be no consideration as to whether one party’s free exercise of religion causes a burden on another party. For example, if a local clerk refuses to issue a license to a same sex couple due to a sincerely held religious belief, that couple will be burdened in such a way that opposite sex couples are not. I’m not sure what recourse this couple has. The state won’t be able to require its employee to go against a sincerely held religious belief unless it wants to claim same sex marriage licensing is a compelling state interest. Given recent events I’m not holding my breath that the state will soon take pity on them. I think it is quite likely that the courts will need to sort out what happens when one party’s exercise of freedom of religion causes another party’s constitutional rights to be violated. I fear that the true intent of the law is so that individuals may exercise their religious freedom without the traditional bounds that “your rights end where mine begin.” Stefani Vinkemeier Warsaw
