Comparing the Federal Religious Freedom Restoration Act with Indiana’s
By: Alec Jalovec
The highly contentious Religious Freedom Restoration Act (“Indiana RFRA”), which was passed in Indiana about a month ago, has created a national debate about religious freedom and discrimination. However, the United States Congress created and passed a similarly titled law in 1993 (“Federal RFRA”). Proponents of Indiana’s RFRA claim that the two laws are essentially the same, but critics claim that the Indiana law allows for open discrimination. In truth, the two laws are quite similar, but there are several differences between them that may lead to incongruent legal applications.
First, the Indiana RFRA protects the exercise of religion by corporations explicitly. The particular language in the bill states that the definition of “person” includes corporations, LLCs, and partnerships that “exercise practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, [whether or not the entity is for profit or nonprofit].” Obviously, opponents of the bill claim that the broad scope of the language is far beyond the language of the Federal RFRA because the federal law only applies to a “person.” On the other hand, supporters of Indiana’s RFRA claim that, because the Dictionary Act in the United States Code includes corporations, partnerships, etc. in its definition of “person,” the two laws should apply to the same entities and individual people.
Second, Indiana’s RFRA protects religious freedom when that freedom is “likely” to be substantially burdened. The Federal RFRA only explicitly provides for judicial relief after a person’s “religious exercise has been burdened.” Supporters of Indiana’s RFRA believe that the added language does nothing to contradict the Federal RFRA because the Federal RFRA has been interpreted to allow for preliminary injunctions and other similar pre-enforcement remedies. Opponents of the bill believe that Indiana’s law drastically expands the types of claims that people can bring. On this issue it seems that the supporters of the bill have the upper hand. The Supreme Court in Burwell v. Hobby Lobby Stores, Inc., prevented the plaintiffs from being compelled to provide contraception under their healthcare plans. This remedy was issued prior to any of the plaintiffs having to provide contraception.
Third, the Indiana RFRA seems to allow for the exercise of religion to serve as a defense in a private suit where the government is not a party. Opponents say that the Indiana RFRA provides protection for people who discriminate based on religious beliefs. Supporters of the bill claim that the provision is meant to address ambiguity in the Federal RFRA about whether that law can be used as a defense in private lawsuits. Currently, there is a split among federal circuit courts interpreting whether the Federal RFRA can be used as a defense in private lawsuits. Regardless of whether either of the RFRAs provide a defense in a private suit, neither law provides immunity for those who practice discrimination; the laws only allow a party to raise a defense.
Future litigation will undoubtedly resolve many of the ambiguities between Indiana’s RFRA and the Federal RFRA. Facially, the Indiana RFRA appears to provide more protection for corporations and businesses who practice discrimination because business entities are expressly included in the law’s definition of “person,” and the law expressly allows a defendant to bring the law as a defense in any judicial proceeding. However, depending upon how future courts interpret the Federal RFRA (namely whether courts will allow the Federal RFRA to serve as a defense in a civil suit), the two laws may not end up being so different in application.
 134 S.Ct. 2751 (2014).
 The language in section 9 of Indiana’s RFRA states the following:
“A person whose exercise of religion has been substantially burdened, or is likely to be 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.”
2015 Ind. Legis. Serv. P.L. 3-2015 (S.E.A. 101) (WEST).