Being curious about what the Indiana Religious Freedom Restoration Act says amid the media frenzy regarding “legalized discrimination,” I decided to have a look.

The entire text is important as it explicitly bars the law’s application to State services. But the notable substance of the law is listed below, with the most relevant sections being Sections 8 and 9.

A governmental entity may not place requirements upon an individual that “substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (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.

“A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. 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.”

My interpretation is that the law provides a defense of religious liberty in enforcement actions. It does not, as claimed in the media, legalize discrimination because a party can still bring a claim of such to be litigated, with the substance of the claim weighed between the religious rights of private parties and governmental interest during the dispute.

My opinion of the law is mixed.

On the one hand, I find the probation of any particular form of private behavior that does not produce injury revolting. Even though I may not agree with a given behavior, I do not believe that government has a right to interfere. In the absence of legal remedies, however, it does not mean that persons engaging in such behavior will not be punished when market discipline is brutal in and of itself. Don’t want to do business with homosexuals? Fine. You don’t get their money, someone else will. Then, they will tell their friends what a bigot you are, and you won’t get their money either. Bigoted behavior in business is self-defeating, while rewarding the more inclusive-minded competition. But people have a right to be stupid and to suffer the consequences of their actions.
The other thing I like about this law, though it will probably receive the smack-down in one form or another, is that it bars the imposition of burdens to religious liberty by State and “other governmental entities,” an implied nullification of Federal attempts to quash personal liberty.

On the other hand, what I don’t like about this law is that leaves the determination of governmental interest rather fluid, to be generally defined by the judiciary. As such it is a cowardly delegation of legislative authority that creates a sort of ambiguity in which the determination of lawful behavior is developed on a case by case basis by an oligarchy. The law may mean something, but then again, over time, it may not mean anything at all.

It is also very narrow in scope considering the ample ways that government quashes personal liberty and violates property rights as to carve out protections of personal liberty for certain groups of individuals, placing an indirect financial burden on secular groups and religious minorities. I certainly do not agree with “freedom for me, but not for thee,” thus is law is ultimately a bad law.

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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.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (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.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. 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.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

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