RFRA vs. RFRA
Why the Indiana RFRA is not the same as the Federal RFRA
PLEASE NOTE: A much more in depth and educated analysis can be found here. Mine is cursory and from a layman’s perspective.
Recently, there has been quite a bit of hullabaloo in Indiana and nationwide about the passing into law of SB101, Indiana’s version of the RFRA, or Religious Freedom Restoration Act. Governor Mike Pence’s defense of the bill and now law is that it is not different than the now twenty year old federal law of the same name, passed nearly unanimously and signed by then president Bill Clinton. The problem is, that is not true. Although similar on the surface, there are some important differences. Differences that I think that a lot of people in the media are not really explaining, and I hope to do so here. I myself was guilty of hopping on the bandwagon of criticism of the bill without understanding why I was doing so, and, because of that, I nearly stopped when I considered what Governor Pence was offering as defense. However, I have a feeling he was not expecting people to actually do the research he was encouraging, or they would realize what was really going on.
So, we will discuss some of the larger points, then get into the finer points after the jump.
The Federal RFRA was designed, primarily, to help Native American tribes who had come under legal attack from the federal government in projects that were threatening sacred land, as well as protecting the use of peyote in Native American religious ritual. Although it was not specifically written for Native Americans, that was the original driving factor.
Originally, it applied to the federal as well as state government, although that changed when it was ruled that it was not constitutional to cover state law in such a way, which led to the increase in states passing their own versions of the law.
Which brings us to the primary difference between the federal and the new Indiana version.
Here is the text of the Federal version.
Here is the text of the Indiana version.
Did you catch the difference?
Sure, there are some minor differences in the language of the actual legalese. But the real curve-ball is in the definitions.
Try to find a definition of “person” in the federal version.
Back in 1993, it was pretty clear what a person was. A human being. Could be incarcerated, would some day die. Could have religious beliefs.
Here in the present, the Supreme Court has blurred those lines, and Mike Pence just signed into law that companies can have religious beliefs.
I’m going to repeat that.
Governor Mike Pence just signed into Indiana law that companies are not only people, but have constitutionally protected religious rights.
So, that is what all the uproar is about. Wonder how long until companies are given voting rights?