Indiana Laws and the Raiders of the Lost Freedom

Probably the most likely context in which most Australian readers will have heard of “Indiana” is in the famous movie series from the 1980’s, alluded to in my cringe-worthy blog title! But the internet has been alive in recent days with headlines trumpeting the fact that this otherwise innocuous American State seem to be suddenly riddled with gay-hating “homophobes”. As exalted a figure as Tim Cook, CEO of Apple, describes recent legislation enacted there and elsewhere as “Pro-discrimination ‘religious freedom’ laws“. His reference to “days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms” implies that such laws are somehow authorising behaviour the moral equivalent of the worst sort of racial discrimination practised in the Deep South before the civil rights era. Even an article in the local Sydney Morning Herald tells us that under this dreadful law “a bar could use the law to refuse service to gay clientele” and it is “a licence to discriminate.”

All of this sounds horrible, and it would be- if it were remotely attached to reality! But the fact is that both the origins of the law, and its actual legal effects, have been misrepresented in these articles and other internet coverage- misrepresented so seriously that it is hard to avoid the conclusion that those running the “campaign” against the law in the US are doing so intentionally. I’d like to try and set the law in context, describe how it might operate, and offer a few comments about similar issues that may arise in Australia in the future.

The Indiana Legislation and its background

Others on the internet have already done a good job of outlining the background and operation of the Indiana law, here, herehere and especially here. But it may be helpful just to run through it again.

First, the Act itself. Despite what you might think from reading about it on some websites, it is not called the “License to Discriminate Act” or anything similar. Here is a link to the whole thing- it isn’t very long. It is the “Religious Freedom Restoration Act”, due to commence operation on July 1, 2015, as chapter 9 of the Indiana Code. The legislation sets up the principle that if the Government or some other public entity of Indiana wants to interfere with religious freedom, then they have to show that there is some compelling reason, and that they have chosen the least burdensome way of dealing with it. The core provision is s 8:

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.

Is this a radical new idea? No. Some 19 other States of the US have enacted similar legislation, most of them called by the same name, RFRA. The reason for the name is that this State legislation is modelled on Federal legislation which was enacted back in 1993 by the US Congress (almost completely unanimously, and signed with great celebration by President Clinton and Vice-President Gore.) That legislation was thought to be needed because in a very narrow interpretation of the “free exercise of religion” clause in the First Amendment to the US Constitution, the US Supreme Court in Employment Division v Smith 494 US 872 (1990) had held that there would be no protection for freedom of religion when Congress had enacted a “neutral law” (i.e. one not specifically targeted at religion) of general application. This effectively removed a lot of protection for religious freedom that had previously been applied by the Supreme Court, and the RFRA was designed to “restore” this previously enjoyed religious freedom. (See my previous post on the “Muslim prisoner beard” case which describes the operation of similar legislation.)

The effect of the legislation, then, is to provide some protection for people who have serious religious objections to complying with a law that otherwise applies to everyone in the community. An Amish person, for example, may not want to have their photo taken because they believe this breaches prohibitions on making “graven images”; their right here will have to be balanced against the State’s general interest in identifying drivers through photo licenses.

The Indiana RFRA does go slightly beyond some of the other State laws of a similar nature, though not radically so. First, it provides protection for religious freedom of some corporate entities, as well as for that of individuals. Under s 7 the definition of “person” extends to companies where persons who have “control and substantial ownership of the entity” have shared religious beliefs. In doing so it departs from all but one other State RFRA. However, most of those other Acts were passed before the US Supreme Court handed down its decision in the Hobby Lobby case in 2014, where a majority of the court held that the word “person” in the almost identical Federal RFRA extended to include “closely held corporations”, where religious beliefs of the corporate owners could be identified. So in effect the Indiana RFRA is really mostly recognising the reality of the way all the similar legislation will have to now be interpreted, since the US Supreme Court has provided that authoritative ruling.

The second point of distinction for the Indiana law is that it can be invoked as a defence in litigation between private individuals, not just in a case against the government. Section 9 provides that a person whose religious freedom is burdened

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.

(The drafting is a bit odd here. While s 9 seems to indicate religious freedom can be a “claim” in actions involving private parties, s 10 of the Act when describing the result of such an action simply says that the court “shall allow a defense against any party”, while adding that other remedies such as an award of damages may be sought from a “government party”. I think on balance the “defence” operation is what is intended here in private party cases.)

The application of the RFRA to private party cases is only explicitly provided for in one other State RFRA. However, other State courts have interpreted their laws to allow such actions, so again it is not unique.

Allowing bars to deny service to gays?

What, then, does all that have to do with “anti-gay” laws and refusing service in bars? Well, not very much. But it is true that the law might apply in some cases involving gay couples. In a previous blog post I discussed a series of cases involving “wedding service providers”, where it has been suggested or found that someone declining to provide photography, florist or baking services to support same sex marriage was guilty of “sexual orientation discrimination”.

Proponents of the Indiana law do think that this legislation might allow a better balancing of “freedom of religion” with the right to “freedom from discrimination” than has previously been provided in these cases. Where a wedding service provider with a genuine religious belief that same sex relationships are sinful, is asked to provide support and celebration to such a relationship, it does indeed seem to be a substantial burden on their religious freedom. To support the validity of such a rule, the government would need to show that the law furthered a “compelling government interest” and did so in a way which was the “least restrictive means”.

There is no guarantee, of course, that the provider would win their case. The court will still have to weigh up these important issues. However, it would seem to be at least arguable that, where there was no real shortage of such services elsewhere in the community, presumably from providers who would actually provide a better service because they genuinely wanted to assist in the celebration of the union, it would seem to be burdensome and achieving no real gain to dragoon a believer into reluctantly providing the service (or else giving up their livelihood).

But notice that the effect of the law, even if were applied in this way, is incredibly limited. It does not authorise wholesale denial of services to gay persons! (Indeed, there is quite some irony here in the fact that Indiana as a State does not have any general prohibition on sexual orientation discrimination anyway. So at the moment, in most of the State, there is no obligation to serve a gay couple to which the RFRA would provide a defence. Still, some local city laws do have such provisions, so the issue is a live one in some areas of the State.)

No- the provision would only operate where there was a genuine religious belief (and courts are more than capable of making judgments about these things), and where there was a plausible case that what was being requested went against the belief. No religion that I know of requires bartenders to refuse to serve homosexual persons! Indeed, there is a very important threshold issue in all the “wedding provider” cases, that to decline to support the institution of same sex marriage may not of itself amount to discrimination against homosexuals. Many “straight” persons support same sex marriage; some gay persons do not. Arguably refusing to support the institution is not relevant “discrimination”. (This argument was rejected in two of the cases mentioned in my previous post, but I think it still ought to be considered.)

So- the Indiana law is not the “anti-gay” monster that it has been painted. It would take another blog post to properly analyse the reasons why it has been so painted, and the way that the mainstream media picks up on distorted views of the law without checking for themselves. But that seems to be the situation. Of course persons of good will may still disagree about the balance to be struck in these areas. But it would be nice if arguments were made in light of the facts, instead of being put forward from mere prejudice. The “lost freedom” of free exercise of religion is being diminished to the point of vanishing in some of this discourse.

Australia and similar issues

Finally, then, how are these issues being dealt with in Australia? And how might they be resolved here?

As I have previously noted, there is no over-arching religious freedom protection in Australia. A Federal prohibition on sexual orientation discrimination, if it was thought to be breached by a wedding service provider, might in theory be challenged under s 116 of the Constitution as an “undue” infringement of religious freedom (to quote Latham CJ from the JW’s case noted in the previous post.) However, the interpretation of the free exercise clause here has in the past been just as narrow as the Smith approach in the US, so it is quite unclear whether this would be useful.

At the State level some States have a Charter of Rights which provides some protection for religious freedom. And most States, where they have discrimination legislation, include some type of “balancing clause” to protect such freedom. However, in most such legislation that protection is extended to “religious organisations”, not to individuals. (Interestingly, such a provision in the NSW Anti-Discrimination Act 1975 was held to allow an evangelical group, the Wesley Mission, to decline to place a child for fostering with a same sex couple, in OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).)

One notable exception to the rule that most “balancing provisions” apply to religious organisations is Victoria, where s 84 of the Equal Opportunity Act 2010 (applying to “persons” generally) provides:

Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

While the provision seems at first glance very broadly worded, any fears that it might prove a “license to discriminate” against gay people can probably be laid to rest in light of the decision of the Victorian Court of Appeal in the CYC v Cobaw (2014) case, noted previously. There the Court read the provision so narrowly that a group called “Christian Youth Camps” and their manager were not able to rely on their commitment to a conservative view of Biblical sexual morality in declining to take a booking for a week whose stated aim was to “normalise” homosexual behaviour to a group of young people.

While there have so far been no reported cases in Australia involving “wedding industry” religious believers declining commissions to assist in celebration of same sex ceremonies, this may mostly relate to the fact that same sex marriage is still not recognised in Australia. (For good reasons, in my view.) Should it become legal, or should there be some move to formalise “de facto” same sex relationships with “wedding-like” ceremonies, then these questions may arise. In my view it would be sensible for Australian governments to consider enacting religious protection laws which would allow appropriate balancing of rights. Of course the furore over the Indiana laws may discourage politicians from daring to do so (as indeed may be its purpose). But I would encourage those responsible for lawmaking to remember their commitments to govern for the good of all the citizens in a democracy, not just those with the loudest voice in the media.

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