The Religious Freedom Restoration Act and Ducks

There’s one thing that sits pretty high on my list of things I can’t stand, and that’s when people of authority knowingly and willingly bend things to intentionally mislead people who rely upon them for insight. So, of course most politicians fall into that category at times. Media personalities and pundits fit the bill, too. So, of course, it was inevitable that it would happen in regards to Indiana’s recently passed Religious Freedom Restoration Act. An article in the Atlantic by Garrett Epps, a constitutional law professor, has been making the rounds as a shut-down piece to show how terrible the law is, but it fits the bill nicely in terms of meeting the criteria for deception.


Let’s start with the beginning. And by beginning, I mean an anecdote that takes up almost half of the article and really has zero to do with the issue other than to inflame emotions. Mr. Epps uses the story of Maurice Bessinger, a vocally racist restaurant owner from the South that brought a case in the 60’s, to paint a picture. And what picture is that? Why, to make all supporters of the RFRA a racist bigot, of course. It’s a divisive journalistic device of false equivalence. In the context of Indiana’s RFRA, it does as much to provide “a good background against which to measure the uproar” as mentioning that Hitler loved dogs does when discussing dog license regulations. Sure, religion is mentioned in both, just like dogs in my example, but the use of a polarizing figure as a lead in to the story is done for purely manipulative reasons.

Are you good and angry now? Do you hate that mean racist guy? Good. Hold onto that anger while we start talking about the actual subject at hand.


The main crux of Mr. Epps’s article is to argue against another article in the Weekly Standard, which makes the assertion that Indiana’s RFRA is substantially similar to all of the other RFRAs out there, including the federal one from 1993. Mr. Epps disagrees, and endeavors to point out two main reasons that Indiana’s law is not the same as the federal one or most of the state equivalents. So, let’s look at the first one:

First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

So, South Carolina does, but somehow this is unprecedented? Does South Carolina provide any evidence for abuse of RFRA to allow for discrimination? That aside, Mr. Epps claims that the federal RFRA doesn’t contain that language. Yet, curiously, he states this a few paragraphs later:

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

So wait, the federal RFRA was interpreted to give some for-profit corporations RFRA protection? But I thought the federal RFRA didn’t contain such language?

It’s all semantics. You see, the statute doesn’t explicitly contain such language, sure. However, the Supreme Court has interpreted the statute to include some for-profit corporations. So, yes, the federal law DOES now extend that way.

The intentionally misleading part comes in here. Mr. Epps states that the Indiana law explicitly allows ANY “for profit-business” to assert the right. But the federal law after the Supreme Court case? SOME “for-profit businesses.” Hobby Lobby limited the use of the defense to only include for-profit businesses that are closely held and operated by the owners. See? Different. Indiana allows it for ALL, as is clear by the language of the statute:

Sec. 7. As used in this chapter, “person” includes the following:

(1) An individual.

(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:

(A) may sue and be sued; and

(B) exercises 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, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Emphasis mine. So, no, not ANY for-profit business. Just ones with individuals that have control and substantial ownership over the business. Which is the definition of a closely held business. Which is the same as the Supreme Court interpretation of the federal RFRA.

Therefore, yes, the Indiana law is the same as the federal law in that regard, although Mr. Epps intentionally left that part out and, quite frankly, made a dishonest distinction by saying the Indiana law was open to ANY and the federal law was just SOME. The truth is, the Indiana law looks like it was written expressly with that Supreme Court case in mind by including the same closely held business limitations.


The second assertion made in the article is this:

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.

The singling out of businesses is unnecessary, because it applies to all individuals under the definition of the statute. Also, like his first example, he points out Texas has similar language in their RFRA, so this is also not a novel concept. That aside, this too is a semantics game that is mostly due to the fact that the issue hasn’t gotten the whole way up to the Supreme Court yet. If you read the literature on the matter, you’ll see that there are a substantial amount of courts that DO think RFRA provides a defense in cases between private entities. Heck, even the Department of Justice has alluded to it. For instance, take the DOJ’s own words from its support of a motion to dismiss in Wheaton Coll. V. Sebelius in 2012:

[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act.”‖ Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).

That is the DOJ saying, if a private citizen sued Wheaton, they could use the RFRA as a defense. Although Wheaton is considered a religious institution in terms of being defined as a person, Hobby Lobby has since extended that to closely held corporations as well (as mentioned above).

It doesn’t end there, though. A Virginia Law Review article from 2013 nicely summarizes where this issues stands on the Circuit Court level:

Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit. Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).” This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.

Those circuit courts include the 2nd, 8th, 9th, and D.C. To be fair, there are also circuit courts that take the opposite view, namely the 6th and 7th. Arguably, the “pro” circuit court areas cover a larger portion of the population, but at best the issue is still up for interpretation. So, with it still being uncertain, is there anything wrong with Indiana making their version of the RFRA less ambiguous rather than waiting for the Supreme Court to decide?

Regardless of the answer to that question, Mr. Epps also left out this part of Section 9 of the Indiana law:

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.

So, even if the government is not a party, they can enter a lawsuit between private parties at any time when the RFRA is invoked as a defense. The government will always have an opportunity to participate if it so chooses in order to respond and lend support to statutory interpretation.

For this second point, then, Mr. Epps may or may not be correct depending on how you view the way the interpretation of the federal RFRA sits at the circuit court level. However, to insinuate that it is a unprecedented take on the matter is false on its face.


Where does that leave things? Mr. Epps’s assertion is that Indiana’s law is not the same as RFRAs, like the federal RFRA, because it “explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches” and because it “explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.” The trouble is, the federal law does the same thing in the former case and arguably the same thing in the latter, and Indiana’s law is certainly not novel in either of those instances.  What that show is that Indiana has essentially mirrored the current legal landscape in drafting a law that 19 states and the federal government already had on the books for at least 20 years.

The broader trouble in all of this is that it is, again, a perfect example of our current heated state of affairs. We develop gut feelings and shoot first. Then, when we get into the details for whatever reason, confirmation bias kicks in and we tend to look for any evidence that supports our views while discounting the others. This is a pretty horrible way to go about any debate on a difficult topic, particularly one where it deals with the intersection of rights of two individuals.

What only makes that situation worse is when people, like Mr. Epps, use their position to fan those flames when they really have a heightened duty to be as objective as possible. The law is tricky, it deserves thorough scrutiny, and it certainly is not served well by using an article as confirmation bias bait for your own personal opinions distributed to an audience that is arguably not aware of all of the subtle nuances. There is a duty there to explain the subtle nuances, not hide them because you know your audience isn’t going to bother looking into it themselves. Mr. Epps knows people will be looking for bullets, so he is more than happy to craft one under the guise of a reputable source.

The takeaway is this: never use another person’s opinion in substitution of your own research, and shame on authors like Mr. Epps for continually fanning the flames with hyperbole, intentional omissions, and obfuscation to further their own agenda.


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