# The Notorious Indiana Bill Just Signed Into Law--Other States Have It? **URL:** \ **Category:** Factual Questions\ **Created:** [March 27, 2015, 1:24pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109 "2015-03-27T13:24:09Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [March 30, 2015, 4:25pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/41 "2015-03-30T16:25:44Z")
I think y’all are missing the point, here. There’s nothing in the law specifically that’s causing the firestorm. It could be worded entirely differently and Pense would still be plaintively asking ‘why us?’ That would be because over the last few years the overall political belief in the country has become that discriminating against LGBT persons is a bad thing. Indiana is dealing with the fact that it’s the first high-profile RFRA passage since the numbers turned so significantly. When a hot button issue hits 65%+ approval nationally you can bet there’ll be a firestorm if a governmental entity is seen as moving against that issue. It wouldn’t surprise me if there were a small trend to work to repeal or modify existing RFRA laws around the country. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 30, 2015, 4:57pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/42 "2015-03-30T16:57:22Z")
> [@Bricker](#): > > Er… I agree that “expressly” is a difference, but the federal law protects corporate practices too, via the Dictionary Act. I haven’t tallied case law in the states – is it really the situation that most other state RFRA laws do not protect corporations? AFAIK, most of the state RFRAs were modeled on the federal language, but without the Dictionary Act aspect. Some, like PA, foreclose that reading since they expressly apply to individuals and churches. I’m not aware of any other state that has expressly included coverage for corporations, are you? Notably, even the scope of federal RFRA in this respect is less clear than IN, given the various equivocating statements in the _Hobby Lobby_ decision. ---
**Author:** ![CalMeacham](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/calmeacham/32/35_2.png) [@CalMeacham](https://boards.straightdope.com/u/CalMeacham)\ **Post date:** [March 30, 2015, 6:05pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/43 "2015-03-30T18:05:55Z")
This piece from **The Atlantic** addresses what is different about the Indiana law. Essentially, it says that there are things in the new Indiana law that are NOT in the federal law, nor in any of the other state laws (except that Texas and South Carolina have one each, but not both): > **[What makes Indiana's religious freedom law different?](https://www.yahoo.com/news/what-makes-indianas-religious-freedom-law-115030098311.html)** > > The new statute's defenders claim it simply mirrors existing federal rules, but it contains two provisions that put new obstacles in the path of equality. > [@](#): > > There’s a factual dispute about the new Indiana law. It is called a “Religious Freedom Restoration Act,” like the federal Religious Freedom Restoration Act, passed in 1990. Thus a number of its defenders have claimed it is really the same law. Here, for example, is the Weekly Standard’s John McCormack: “Is there any difference between Indiana’s law and the federal law? Nothing significant.” I am not sure what McCormack writer was thinking; but even my old employer, The Washington Post, seems to believe that if a law has a similar title as another law, they must be identical. “Indiana is actually soon to be just one of 20 states with a version of the Religious Freedom Restoration Act, or RFRA,” the Post’s Hunter Schwarz wrote, linking to this map created by the National Conference of State Legislatures. > > The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes. If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 30, 2015, 6:57pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/44 "2015-03-30T18:57:42Z")
> [@Bricker](#): > > Is this belief of yours sincere? [The full text](https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197): > [@](#): > > Sec. 5. As used in this chapter, “exercise of religion” includes > any exercise of religion, whether or not compelled by, or central to, > a system of religious belief. > … > > (b) A governmental entity may substantially burden a person’s > exercise of religion only if the governmental entity 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 > governmental interest Where do you see sincerity mattering? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 30, 2015, 7:07pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/45 "2015-03-30T19:07:32Z")
That’s a good point, actually. We imply “sincerity” into the federal RFRA because it was part of the Sherbert test, but the Indiana RFRA specifically avoids reference to interpretation of the free exercises clauses. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 30, 2015, 7:16pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/46 "2015-03-30T19:16:18Z")
The definition “whether or not compelled by, or central to, a system of religious belief” includes \*not \*so compelled or central. :dubious: All you have to do is say “God forbids it” instead of “Seeing two guys kissing just pisses me off” and you’re home free. It’s silly to say that isn’t the _intent_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 7:48pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/47 "2015-03-30T19:48:06Z")
> [@Richard\_Parker](#): > > AFAIK, most of the state RFRAs were modeled on the federal language, but without the Dictionary Act aspect. Some, like PA, foreclose that reading since they expressly apply to individuals and churches. I’m not aware of any other state that has expressly included coverage for corporations, are you? At the very least, South Carolina, SC Code § 1-32-20(3): > [@](#): > > (3) “Person” includes, but is not limited to, an individual, corporation, firm, partnership, association, or organization. > [@](#): > > Notably, even the scope of federal RFRA in this respect is less clear than IN, given the various equivocating statements in the _Hobby Lobby_ decision. Perhaps. The plain language of the Dictionary Act is… well… plain, and makes no distinction between for-profit, non-profit, and closely-held. I grant that the Hobby lobby decision does equivocate (in dicta) on close-held, but clearly Hobby Lobby is itself a for-profit corporation, and so it’s NOT dicta that the RFRA applies to them. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 7:50pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/48 "2015-03-30T19:50:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That’s a good point, actually. We imply “sincerity” into the federal RFRA because it was part of the Sherbert test, but the Indiana RFRA specifically avoids reference to interpretation of the free exercises clauses. We imply it because 42 U.S. Code § 2000bb(b)(1) expressly says that the purpose of the law is, “…to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened…” ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 30, 2015, 7:53pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/49 "2015-03-30T19:53:04Z")
Well, maybe my declaration of “most” was premature then. Certainly, several other RFRAs expressly disallow or are simply silent on the question of for-profit corporate religious rights. Another notable distinction is the ability to raise IN-RFRA as a defense in a private suit. Not sure if someone noted that upthread or not, but that’s how the New Mexico gay wedding photography case got resolved. And there is a circuit split over whether federal RFRA allows this, so the IN law made it clear that they can use the defense in a private suit. I think the larger point is that Indiana Republicans essentially pitched this as a bill to enable anti-gay discrimination, and Gov. Pence refuses to say whether or not the bill protects anti-gay discrimination. So the people expressing shock at the national outcry when the text of the bill is similar to other state RFRAs are sort of missing the point. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 7:54pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/50 "2015-03-30T19:54:38Z")
> [@CalMeacham](#): > > This piece from **The Atlantic** addresses what is different about the Indiana law. Essentially, it says that there are things in the new Indiana law that are NOT in the federal law, nor in any of the other state laws (except that Texas and South Carolina have one each, but not both): > > [What makes Indiana's religious freedom law different?](https://www.yahoo.com/politics/what-makes-indianas-religious-freedom-law-115030098311.html) The article (shockingly) fails to mention that a majority of federal circuits have held that the federal RFRA is a defense even when the government is not a party. So the second “difference” it claims between the Indiana and the federal statute is illusory. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 30, 2015, 7:57pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/51 "2015-03-30T19:57:15Z")
It’s not a majority of federal circuits, it’s a majority of those to have considered it. It’s 4-2, with the majority not having decided the issue. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 8:02pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/52 "2015-03-30T20:02:59Z")
> [@Richard\_Parker](#): > > Well, maybe my declaration of “most” was premature then. Certainly, several other RFRAs expressly disallow or are simply silent on the question of for-profit corporate religious rights. I can only find two states that address the issue in a specific way. Louisana: LA. R.S. 13:5234, in their definitions section, says that “person” includes: “…an individual and also includes a church, association of churches or other religious order, body or institution which qualifies for exemption from taxation under Section 501(c)(3) or (d) of the Internal Revenue Code of 1986 (Public law 99-514, 26 U.S.C. Section 501).” It does not expressly exclude corporations, and the definition includes only natural persons and churches, but it doesn’t expressly exclude corporations either. Pennsylvania, 71 P.S. § 2403 uses the exact same definition. Is that what you mean by “expressly disallow?” Or are there other states that actually, explicitly, excludes corporations and I missed them? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 8:04pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/53 "2015-03-30T20:04:00Z")
> [@Richard\_Parker](#): > > It’s not a majority of federal circuits, it’s a majority of those to have considered it. It’s 4-2, with the majority not having decided the issue. Yes. Correction accepted – a majority of federal circuits that have considered the issue. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 30, 2015, 8:06pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/54 "2015-03-30T20:06:00Z")
> [@Bricker](#): > > Is that what you mean by “expressly disallow?” > > Or are there other states that actually, explicitly, excludes corporations and I missed them? Yes, and I think that’s a pretty fair use of the term. A definition that enumerates exactly who is covered as a “person” and does not include for-profit corporations is expressly disallowing that result, in this context. That is, those laws are distinct from those that do not define “person,” and thus could be subject to court rulings that apply them to for-profit corporations. By contrast, the text of these two laws forecloses that possibility. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 30, 2015, 8:11pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/55 "2015-03-30T20:11:05Z")
> [@Bricker](#): > > We imply it because 42 U.S. Code § 2000bb(b)(1) expressly says that the purpose of the law is, “…to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened…” Right. But that this is _not_ the stated purpose of the Indiana RFRA, so there is no reason to imply it in construing that statute. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 8:14pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/56 "2015-03-30T20:14:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That’s a good point, actually. We imply “sincerity” into the federal RFRA because it was part of the Sherbert test, but the Indiana RFRA specifically avoids reference to interpretation of the free exercises clauses. 42 USC 2000bb also is devoid of any mention of “sincerity.” And yet, in every circuit I can find, that’s the standard: See, e.g., _Goodall By Goodall v. Stafford County School Board_, 60 F. 3d 168 (1995): > [@](#): > > In analyzing a claim under RFRA, we look first at whether a substantial burden has been imposed on the exercise of sincerely-held religious beliefs,[6] and then determine whether the state can justify the imposition of that burden. > . > . > . > FN6: The parties agree that the Goodalls send Matthew to a Christian school pursuant to their sincerely-held religious beliefs. Are you seriously arguing that sincerity is read into the federal law but not into the state RFRAs? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 8:16pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/57 "2015-03-30T20:16:55Z")
> [@Richard\_Parker](#): > > Yes, and I think that’s a pretty fair use of the term. > > A definition that enumerates exactly who is covered as a “person” and does not include for-profit corporations is expressly disallowing that result, in this context. That is, those laws are distinct from those that do not define “person,” and thus could be subject to court rulings that apply them to for-profit corporations. By contrast, the text of these two laws forecloses that possibility. Well, I’m not so sure I agree it’s foreclosed. A decent argument can be made for the ol’ _expressio unius est exclusio alterius_, but the text says “includes,” and does not say “limited to.” While I agree that this is the likely outcome, I don’t agree that your characterization of this language as “expressly” is justified. Instead, I’d say that the language implies, or even strongly implies. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2015, 8:20pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/58 "2015-03-30T20:20:08Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Right. But that this is _not_ the stated purpose of the Indiana RFRA, so there is no reason to imply it in construing that statute. OK. Let’s make a little bet. I say that courts construing this language will look to the sincerity of the belief as a necessary element. I’ll bet you $300 that within two years, there will be precedence in Indiana to that end. If no cases arise in two years, the bet’s a push. If cases arise and the courts do NOT require sincerity, you win. What do you say? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 30, 2015, 8:29pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/59 "2015-03-30T20:29:38Z")
> [@Bricker](#): > > Well, I’m not so sure I agree it’s foreclosed. A decent argument can be made for the ol’ _expressio unius est exclusio alterius_, but the text says “includes,” and does not say “limited to.” > > While I agree that this is the likely outcome, I don’t agree that your characterization of this language as “expressly” is justified. Instead, I’d say that the language implies, or even strongly implies. Fair enough. Though I think super-duper strongly implies would be the technical term. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 30, 2015, 10:20pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/60 "2015-03-30T22:20:23Z")
> [@Bricker](#): > > 42 USC 2000bb also is devoid of any mention of “sincerity.” > > And yet, in every circuit I can find, that’s the standard: There isn’t any dispute that sincerity is part of the federal standard. As we’ve just discussed, sincerity was part of the _Sherbert_ test and the statute specifically indicates that its purpose is to reinstate that test. At least [some](http://laws.flrules.org/files/Ch_1998-412.pdf) of the state RFRAs do the same… > [@](#): > > WHEREAS, it is the intent of the Legislature of the State of Florida to establish the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), to guarantee its application in all cases where free exercise of religion is substantially burdened, and to provide a claim or defense to persons whose religious exercise is substantially burdened by government… … and accordingly those states’ courts have interpreted their RFRAs coextensively with the federal act. > [@](#): > > …the Act specifically mandates that the strict-scrutiny standard be applied irrespective of whether or not the burden results from a rule of general applicability. See § 761.03, Fla. Stat. (2003). Under the test articulated by the FRFRA, the plaintiff bears the initial burden of showing that a regulation constitutes a substantial burden on his or her free exercise of religion. See § 761.03(1), Fla. Stat. (2003). Once that threshold determination has been made, the government bears the burden of establishing that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest. See § 761.03(1)(a)-(b), Fla. Stat. (2003). Thus, the plaintiffs must demonstrate that the government has placed a substantial burden on a practice motivated by a sincere religious belief. **See, e.g., Weir v. Nix, 890 F. Supp. 769, 783 (S.D. Iowa 1995)**. The Southern District specifically noted: “It is undisputed that the plaintiffs placed vertical decorations on their cemetery plots in observance of sincerely held religious beliefs.” Warner, 64 F. Supp. 2d at 1277. Since appellants have demonstrated that their religious beliefs are sincere, the next issue is whether the government’s regulation constitutes a substantial burden on the free exercise of religion. > > Warner v. City of Boca Raton, 887 So. 2d 1023, 1034-35 (Fla. 2004). As we’ve also discussed, the Indiana version makes no reference to _Sherbert_ and is devoid of any other language that might require the court to inquire into the plaintiffs’ sincerity (or defendants’, if the act is asserted as a defense.) So where are the Indiana courts are going to find such a requirement? 😕 > [@Bricker](#): > > What do you say? I’ll consider it, pending your answer to the previous question. You appear to be betting that Indiana courts are lazy - but maybe I missed something. [Previous page](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109.md?page=2) [Next page](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109.md?page=4)