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.
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.
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):
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.
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.
At the very least, South Carolina, SC Code § 1-32-20(3):
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.
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…”
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.
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.
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?
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.
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 of the state RFRAs do the same…
… and accordingly those states’ courts have interpreted their RFRAs coextensively with the federal act.
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?
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.
