Americans United for Separation of Church and State INDIANA ...

Americans United for Separation of Church and State INDIANA CHAPTER March 18, 2015

Indiana House of Representatives 200 W. Washington Street Indianapolis, IN 46204-2786 Re: Oppose SB 101 – Religious Freedom Restoration Dear Representative: I write to you on behalf of Americans United for Separation of Church and State its Indiana members and supporters to urge you to oppose SB 101. This bill is broader and goes further than the federal Religious Freedom Restoration Act (RFRA), which Congress passed in 1993, and thus, it will likely bring forth many of the problems that we now see with the federal RFRA, as well as create new problems. Although Americans United supported passage of the federal RFRA in 1993, that bill has been manipulated over the last 20 years in ways its original supporters could never have imagined. Under the guise of safeguarding religious freedom, this bill also could open the door to discrimination and the denial of important and necessary health services. Accordingly, we must oppose SB 101. The History of RFRA In Employment Division of Oregon v. Smith 1 the Supreme Court ruled that in accordance with the First Amendment, strict scrutiny does apply to a law that substantially burdens religion as long as that law is neutral and generally applicable. Many viewed this as a step backwards, as previously, the Court had applied “strict scrutiny” to free exercise cases: The government could not substantially burden religion unless the government had a compelling interest and the law was narrowly tailored. In response, the federal government and many states passed laws to reinstate the pre-Smith standard. When Congress passed RFRA 20 years ago, supporters intended the bill to be a shield for religion and not a sword to harm others. Today, unfortunately, RFRA is being used as a dangerous and unpredictable sword causing harm in the name of religious freedom. Individuals and corporations are now trying to use RFRA as a way to discriminate and take away the protections, rights, and benefits of other people. These efforts have only increased following the Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. 2

1 2

494 U.S. 872 (1990). 134 S. Ct. 2751 (2014).

NATIONAL OFFICE

1901 L Street NW, Suite 400—Washington, DC 20036 phone: (202) 466-3234 / fax: (202) 466-2587 / [email protected]

INDIANA CHAPTER

P.O Box 46240 Indianapolis, IN 46240 [email protected]

Passage of SB 101 Could Have Dangerous and Unprecedented Consequences Perhaps we should heed Justice Scalia’s warning in Smith, in which he warned that applying the traditional compelling interest test in free exercise cases could lead to troubling results: It could trump “compulsory military service,” “manslaughter and child neglect laws,” “compulsory vaccination laws,” “drug laws,” “traffic laws,” “minimum wage laws,” “child labor laws,” “animal cruelty laws,” “environmental protection laws,” and “nondiscrimination laws.” 3 While we dismissed these claims 20 years ago, we now see that RFRA is being manipulated to trump laws passed to protect human rights and public safety. Under SB 101, for example, a religious employer could try to trump employment discrimination laws, and fire a woman who remarried after a divorce or who was pregnant and unmarried. A healthcare worker could try to refuse a woman a doctor-prescribed medication. A mental health counselor could be exempted from state required licensing requirements. The owner of a sandwich shop could refuse to serve a gay customer. And, a public hospital employee, whether the doctor, nurse, or the intake coordinator, could refuse to serve patients for procedures such as blood transfusions, in vitro fertilization, and mental health care. Discrimination Small businesses around the country have tried to use their state RFRAs to trump public accommodations laws barring discrimination against LGBT customers. 4 And, RFRA has been used on the federal level to trump hiring discrimination protections. 5 As a consequence, religious organizations may invoke RFRA to discriminate in hiring against those who are not co-religionists or those who do not adhere to the same religious teachings and tenets even though federal statutory language explicitly prohibits such discrimination. Since the decision in Hobby Lobby, there are calls to use RFRA to trump the nondiscrimination protections that apply to federal contractors as well. 6 In that same way, this bill could trump any existing or new nondiscrimination protections the state or local governments in Indiana wish to adopt. Although Americans United supports carefully drafted religious accommodations in some circumstances, it cannot do so when such

3

Smith, 494 U.S. at 889 (emphasis added). See e.g., Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013) cert. denied, 134 S. Ct. 1787 (Apr. 7, 2014); Craig v. Masterpiece Cakeshop, No. CR 2013-0008 (Colo. Civil Rights Comm’n June 2, 2014) (final agency order) available at https://www.aclu.org/sites/default/files/assets/masterpiece_--_commissions_final_order.pdf. 5 Memorandum for the General Counsel, Office of Justice Programs, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act (June 29, 2007). < http://www.usdog.gov/fbci/effectrfra.pdf.> 6 Mark A. Kellner, Observers uncertain about the impact of Obama’s employment orders on faith-based agencies, DESERET NEWS NATIONAL,Jul. 23, 2014, http://national.deseretnews.com/article/1965/observers-uncertain-about-the-impact-ofobamas-employment-orders-on-faith-based-agencies.html. 4

2

an accommodation could be used to harm others by denying them their civil rights and dignity. Healthcare If this bill was enacted, its provisions could also be used to deny Indiana citizens access to critical healthcare and safety services. Indeed, in Hobby Lobby, the Supreme Court interpreted RFRA as allowing for-profit corporations to trump federal law and refuse to offer women insurance coverage for contraception. The ways in which the reasoning in this case could be expanded to allow religious beliefs to trump the healthcare needs of patients is unclear. Examples from federal case law, however, demonstrate other troubling ways in which individuals have tried to deny healthcare services in the name of religion. For example, based on their religious beliefs, a maternity ward nurse has refused to scrub for an emergency caesarian section and left a woman “standing in a pool of blood,” 7 and in another case, a nurse has insisted on telling an AIDS patient and his partner about her views on salvation and that God “doesn’t like the homosexual lifestyle.” 8 Again, the government should not allow individuals or corporations to deny healthcare to others in the name of religion or morality. For-Profit Corporations The Supreme Court held in Hobby Lobby that the federal RFRA applies to for-profit corporations—another outcome of RFRA that its supporters did not contemplate 20 years ago. SB 101 explicitly defines “person” to include “a partnership, a limited liability corporation, a company,” and other for-profit entities. Employers have the right to make moral decisions for themselves, but not to force these decisions upon their employees. Furthermore, these businesses entered the stream of commerce for monetary gain and, thus, should not be allowed to reap the benefits of the marketplace but not have to play by the same rules as everyone else. If the state were to allow for-profit entities to trump any law—whether employment laws, nondiscrimination laws, health and safety laws—that they argued burdened their religion, employees and their customers and clients would have no real protections at all. For-profit corporations should not be permitted to escape the mandates of the law, or the protections afforded their employees or the general public. SB 101 Allows the Use of RFRA When the Government is Not a Party The language in SB 101 would allow a person to assert a claim or defense under RFRA even if the government is not a party to the proceeding. The purpose of this language is to allow the law to be used in litigation between private parties. This would expand the reach of this law beyond what is allowed by the federal RFRA. Indeed, the Seventh Circuit, which oversees Indiana, held that the federal RFRA does not apply to suits between private parties. 9 7

Shelton v. University of Medicine & Dentistry of New Jersey, 223 F.3d 220, 223 (3d Cir. 2000). Knight v. State, No. 3:97CV2114(DJS), 2000 WL 306447, at *1 (D. Conn. Feb. 22, 2000). 9 Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) abrogated on other grounds by Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012). 8

3

Allowing the use of RFRA in cases with private parties invites problems and would vastly increase the number of cases brought under RFRA. Furthermore, it is not appropriate to require a private party to defend a law as a compelling government interest. That role is clearly more suited for the government whose interest it actually is. The result of this provision is greater wiggle room for organizations or individuals to pursue policies that may circumvent the civil rights of Indiana’s residents. SB 101 therefore, widens the gap in the law, allowing religious discrimination to more easily flourish. Conclusion Americans United supports efforts to provide protections of religious exercise; however, there is currently no specific or timely concern threatening religious liberty in Indiana that would necessitate this bill. Because this bill could be used to jeopardize Indiana citizens’ civil rights and healthcare protections, we urge you to oppose SB 101.

Sincerely, Matthew Barron Board Member, Indiana Chapter Americans United for Separation of Church and State

4