The Big Lie The Media Tells About Indiana's New 'Religious Freedom' Law

by Judd Legum

On Friday, the Washington Post published an article titled "19 states that have 'religious freedom' laws like Indiana's that no one is boycotting." The article snarks about organizations like the NCAA that have protested Indiana's law, noting "the NCAA didn't say it was concerned over how athletes and employees would be affected by Kentucky's RFRA when games were played there last week." The piece concludes "Indiana might be treated as if it's the only state with a bill like this, but it's not." The piece has been shared over 75,000 times on Facebook.
The Washington Post article largely mirrors the argument advanced by Indiana Governor Mike Pence. Appearing on ABC's This Week, Pence claimed "Then state-Sen. Barack Obama voted for [the Religious Freedom Restoration Act]. The very same language."
The same argument is parroted on Fox News and elsewhere.
It's not true.
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a "person" (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose "exercise of religion has been substantially burdened, or is likely to be substantially burdened" can use the law as "a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding."
Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana's is the only law that explicitly applies to disputes between private citizens.* This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is "more broadly written than its federal and state predecessors" and opens up "the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…"
This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona's Republican governor, vetoed the measure.

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