When I first came across the text of the Religious Freedom Restoration Act [RFRA], I was as perplexed by it as anyone due to its vague wording. The Indiana law is written more broadly than the federal law, and allows (and in fact seems to encourage) anyone - baker, doctor, or bar-owner - to assert a claim of free exercise of religion in court, regardless of whether or not the government is involved, thus opening up a Pandora's box of litigation. What if a doctor refuses to treat a gay person citing religious belief? He'll be able to go to court citing RFRA in his defense. The possible scenarios of such discriminatory behavior seem endless: it's a legal hall of mirrors, as it were.
I reached out to a former professor of mine, Dr. Sheila Suess Kennedy, who is a professor at the School of Public and Environmental Affairs (SPEA) at IUPUI and the Director of the IU Center of Civic Literacy. She also regularly comments on her blog SheilaKennedy.net, on local and national political doings.
Dr. Kennedy has had many careers; as a partner in a law firm, and as the Executive Director of the Indiana Civil Liberties Union from 1992-1998, just to list a few highlights from her CV.
I took Law and Public Affairs with Dr. Kennedy at SPEA back in the fall of 2001. During her first class after 9/11, I recall how Dr. Kennedy seamlessly incorporated that terrible event into that evening’s lecture. My big takeaway from her class, I suppose, was that the law does not exist in a vacuum: we explored the real world consequences of the law being applied and misapplied in the public sphere.
I talked with Sheila Kennedy by phone on the afternoon of Saturday, May 28.
NUVO: I found this law to be somewhat confusing. It seems to be very vaguely worded.
KENNEDY: This goes back to the federal RFRA which I supported because that law was a response to a lawsuit [Employment Division, Department of Human Resources of Oregon vs. Smith]. There were two guys who were drug counselors who were also Indians. There was never any doubt that the religious rituals the Indians practiced required peyote, not unlike Catholics having to drink wine. So they had participated in a religious ceremony and because they were drug counselors they were fired. They applied for unemployment. Unemployment was denied because there was a legitimate reason to fire them. They took it all the way to the Supreme Court and the argument was that they had a religious liberty interest in participating in the ritual that was a legitimate part of their religion…. The Supreme Court….ruled against these two guys. There was a huge outcry. A national RFRA was passed [in 1993] and what that said was that in order for a law of general application to be applied in this way, to keep people from engaging in religious observances, the government has to show a compelling interest. It’s not that you can’t do it, but the government has to [demonstrate] a much higher standard in order to impose a general law in cases where someone has a religious objection. In a later case, the court said this does not apply to the states. And since then various state have passed it. You will hear people say that lots of states have these laws and they don’t hurt anybody and probably that’s true.
There’s two things that explain somewhat the anger over [RFRA]; one is that was unnecessary. Let me back up. It was clearly aimed at the gay community, Eric Miller [Founder and Executive Director of Advance America], Micah Clark [Executive Director of the American Family Association of Indiana], those guys, wanted to have a win of some sort after the gay marriage thing [after it became legal in Indiana last year].
NUVO: Maybe we should trust these guys. After all, they’re saying that they’re protecting religious freedom. What’s wrong with that?