Indiana’s new ‘religious freedom’ law: Good for the Jews?

Jewish community leaders, stars and businessmen are on the front lines condemning new bill for ‘legalizing discrimination.’ But does it?

Amanda Borschel-Dan is The Times of Israel's Jewish World and Archaeology editor.

The Indiana Statehouse on Saturday, March 28, 2015, (AP Photo/Rick Callahan)
The Indiana Statehouse on Saturday, March 28, 2015, (AP Photo/Rick Callahan)

Indiana state is having its Talmud moment. With the passage and signing into law of the new Religious Freedom Restoration Act (RFRA) last week, legal interpretation is rife all over news reports and social media. Lawmakers, clergy, business leaders and even Hollywood stars are weighing in on the bill’s vague language which is, ostensibly, designed to protect religious minorities from undue intervention from government or other forces.

Some budding politicians, such as Bill Levin from the newly registered First Church of Cannabis Inc., even see the RFRA’s ambiguity as a long-awaited opportunity to claim religious freedom for otherwise illegal marijuana use.

However, over the weekend, Governor Mike Pence said he is receptive to clarifying the bill’s unclear language. In an interview Sunday on ABC’s “This Week with George Stephanopoulos” Pence said, “We’re not going to change the law,” but we’re “open to” an additional bill that “reiterates and amplifies and clarifies.”

As the discussions to clarify the legislation unfold, the Jewish community readies itself for another battle in the general assembly, which has another month left to its current session.

David Sklar, director of Government Affairs for the Indianapolis Jewish Community Relations Council. (courtesy)
David Sklar, director of Government Affairs for the Indianapolis Jewish Community Relations Council. (courtesy)

“We will continue to raise concerns about the legislation and continue to educate the community about what RFRA does and does not entail,” said Indianapolis Jewish Community Relations Council (JCRC) director of government affairs David Sklar in a Sunday telephone conversation with The Times of Israel.

Sklar said the JCRC learned of the bill over the summer when Christian conservative groups began talking it up on social media. The JCRC, which, said Sklar, considers itself a “consensus-building organization in the Indianapolis community,” decided to take a position against the RFRA.

“The way that we read it, RFRA will take precedence over any law or state action — which includes the civil rights act,” said Sklar. “We are currently comfortable in the fact that if there was an act of discrimination against the Jewish community, that religion would be a protected class. Now we don’t necessarily know how the courts would rule.”

The RFRA is set to be enforced starting July 1.

The overwhelming response in the Jewish communities across the United States has been against the RFRA, said Sklar.

With Pence signaling he is opening up the discussion, “things are continuing to spin — I would say spin out of control,” said Sklar.

Many high-profile Jews have expressed displeasure at the bill’s passage ranging from the amused condescension of The New Yorker’s Andy Borowitz, who wrote a piece called “Indiana defines stupidity as religion,” to disgust, such as seen in as actor Harvey Fierstein’s series of angry tweets.

Inside Indiana, however, there is vocal abject fear of a new onslaught of pointed discrimination against the state’s gay community, a year after a bitter battle for same-sex marriage was fought there.

Since the bill’s signing, this fear has translated into the palpable loss of real jobs and big money for the state.

On Saturday, Angie’s List’s planned $40 million headquarters expansion in an underdeveloped Indianapolis neighborhood was pulled. It would have added 1,000 jobs over five years.

Other high-tech businesses have promised sanctions, such as Jewish multi-millionaire Marc Benioff’s Salesforce, which canceled any business-related travel to the state, and Apple’s openly gay CEO Tim Cook, who wrote a Washington Post oped Sunday called “Pro-discrimination ‘religious freedom’ laws are dangerous.”

Yelp’s Jewish CEO Jeremy Stoppelman wrote in an open letter on the company’s website Thursday that “it is unconscionable to imagine that Yelp would create, maintain, or expand a significant business presence in any state that encouraged discrimination by businesses against our employees, or consumers at large.”

On social media, the hashtag #boycottindiana is being used widely by RFRA opponents, and increasingly, local stores are putting up signs in opposition: “We do not discriminate. Everyone is welcome in our business.”

Faith leaders have also spoken out against the bill, including Indianapolis’s Rabbi Sandy Sasso, who wrote in a March 22 Indianapolis Star oped, “Our faith requires us to love our neighbors regardless of race, gender or sexual orientation. Love is not an abstract feeling; it is practiced in acts of justice.”

Indianapolis Rabbi Sandy Sasso. (courtesy)
Indianapolis Rabbi Sandy Sasso. (courtesy)

In the aftermath of the law’s passage, on Sunday Sasso emphasized in an email to The Times of Israel along with husband Rabbi Dennis Sasso that Pence does not speak for all Indiana politicians.

“It is noteworthy that the City Council of Indianapolis and the Mayor (also a Republican) have expressed their dismay and opposition about this ill conceived piece of legislation which has injured the image and reputation of a State that is otherwise increasingly diverse and inclusive.

“The governor did great damage by his refusal in this Sunday morning’s ABC interview to state clearly and forthrightly his opposition to anti-gay discrimination,” wrote the Sassos.

Bill may be fought on court — the basketball court, that is

In Indiana, often, more than money or faith, sports sets the state agenda. Especially sports with big money like basketball.

Already, sportsman-turned-analyst Charles Barkley and Indiana’s adopted son, legend Reggie Miller, have spoken out against the bill.

The Indianapolis-based National Collegiate Athletic Association (NCAA) has a history of political activism and in 2002, because the Confederate flag flies at the South Carolina statehouse, banned the state from hosting championship events in predetermined sites.

This week, Indianapolis is set to host the NCAA Final Four basketball tournament on April 3. Last week, the NCAA released a statement ahead of the Thursday bill signing saying it would consider how the bill “might affect future events as well as our workforce.”

“We will work diligently to assure student-athletes competing in, and visitors attending, next week’s men’s Final Four in Indianapolis are not impacted negatively by this bill… Moving forward, we intend to closely examine the implications of this bill and how it might affect future events as well as our workforce,” said NCAA President Mark Emmert.

Cleveland Cavaliers LeBron James is guarded by Indiana Pacers Solomon Hill during the fourth quarter of a NBA basketball game Friday March 20, 2015 in Cleveland. (AP Photo/Aaron Josefczyk)
Cleveland Cavaliers LeBron James is guarded by Indiana Pacers Solomon Hill during the fourth quarter of a NBA basketball game Friday March 20, 2015 in Cleveland. (AP Photo/Aaron Josefczyk)

Likewise, Jewish developer and philanthropist Herb Simon, the owner of the NBA Indiana Pacers and WNBA Indiana Fever, released a statement Saturday: “The Indiana Pacers, Indiana Fever and Bankers Life Fieldhouse have the strongest possible commitment to inclusion and non-discrimination on any basis. Everyone is always welcome at Bankers Life Fieldhouse. That has always been the policy from the very beginning of the Simon family’s involvement and it always will be.”

What is this troublesome legislature?

The Indiana state RFRA, Senate Bill 101, is based on a federal bill signed into law by President Bill Clinton in 1993. Similar state laws have passed in 19 states, and others, including Georgia, South Dakota and Arkansas, have such bills pending.

In dense legalese, the Indiana RFRA “Prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest. Provides a procedure for remedying a violation. Specifies that the religious freedom law applies to the implementation or application of a law regardless of whether the state or any other governmental entity or official is a party to a proceeding implementing or applying the law. Prohibits an applicant, employee, or former employee from pursuing certain causes of action against a private employer.”

Indiana University Law Professor Daniel O. Conkle (courtesy)
Indiana University Law Professor Daniel O. Conkle (courtesy)

The media tornado focuses on fears of that the bill may legalize discrimination against gays, something currently not illegal in Indiana through any statewide legislation, said Indiana University Law Professor Daniel O. Conkle, who is also an adjunct professor of religious studies.

Conkle supported the RFRA, and feels Indiana had a real need for the legislation. His support is rare in Indiana academia where law professors, including many of Conkle’s colleagues, and to date three university presidents have condemned the bill.

Conkle’s boss, Indiana University president Michael A. McRobbie issued a statement Sunday: “While Indiana University hopes that the controversy of the past few days will move the state government to reconsider this unnecessary legislation, the damage already done to Indiana’s reputation is such that all public officials and public institutions in our state need to reaffirm our absolute commitment to the Hoosier values of fair treatment and nondiscrimination.”

But in a conversation Sunday with The Times of Israel, Conkle expressed amazement over the virulent rhetoric surrounding the Indiana bill.

“There are fears and concerns, which are genuinely felt, but the actual law is already in place in 30 other states in the country,” said Conkle. He said the Indiana bill is the same basic law that applies to the federal government which was signed by Clinton. (Interestingly, Hillary Clinton is against the Indiana legislation.)

The actual law, unlike what is being expressed in the public’s concerns, ” said Conkle, is highly unlikely to lead to civil rights being curtailed.”

Conkle said the Indiana RFRA is based on the 1993 federal law, but incorporates the controversial 2014 US Supreme Court case in which Hobby Lobby Stores Inc, a “closely held for-profit corporation,” refused to cover birth control in its medical plan on the grounds of religious freedom.

What is unique in the Indiana RFRA is the language, which defines the group of people who can claim protection under the law to include businesses and corporations, following the intention of the SCOTUS case, said Conkle.

‘The Indiana law simply provides a general legal standard, that requires case-by-case decision by courts’

Additionally, said Conkle, the Indiana law resolves a dispute among lower courts by saying that the law is available for a potential objection, even if the government itself is not party to the case.

“In the hot button, controversial context, that means that if you do have a same-sex couple that sues for relief under anti-discrimination legislation, even if the government is not party to the case, a religious objector would be able to invoke the Religious Freedom Restoration Act,” he said.

Essentially, “the Indiana law simply provides a general legal standard, that requires case-by-case decision by courts,” said Conkle. The standard is what he said is the “so-called compelling interest test,” in which a religious objection is trumped and overruled if the government has a compelling reason to reject religious freedom.”

Demonstrators react to hearing the Supreme Court's decision on the Hobby Lobby case outside the Supreme Court in Washington, Monday, June 30, 2014. (photo credit: AP Photo/Pablo Martinez Monsivais)
Demonstrators react to hearing the Supreme Court’s decision on the Hobby Lobby case outside the Supreme Court in Washington, Monday, June 30, 2014. (photo credit: AP Photo/Pablo Martinez Monsivais)

A group of law professors wrote an open letter in late February ahead of the Indiana RFRA’s legislative journey. They wrote, “Although some proponents of the legislation maintain that the proposed RFRAs offers a modest and reasoned method to secure rights to religious liberty in Indiana, it is our expert opinion that the proposals, if adopted, would amount to an over-correction in protecting important religious liberty rights, thereby destroying a well-established harmony struck in Indiana law between these important rights and other rights secured under the Indiana Constitution and statutes.”

This lack of balance was cited by the Indianapolis Jewish community’s Sklar as well.

“The RFRA has brought in a lot of grey area and ambiguity,” said Sklar.

The wedding cake test

The famous case used by many in the US is that of a religious baker who refuses to create a wedding cake for a same-sex ceremony.

Conkle said, “based on similar courts, the religious objector would lose the case… So basically what the Indiana law does is it would permit the religious baker to make the religious freedom claim, he would be able to invoke it. But does not mean he would prevail.”

Conkle said in Indiana, whose state constitution has been “interpreted rather ambiguously by the Indiana Supreme Court with relative inadequacy” on religious minority issues, the RFRA “does provide enhanced protection for religious freedom in a way that is not available in a broad range.”

Cutting the cake. Yael Biran (left) and Tal Yakobovitch. (photo credit: courtesy)
Cutting the cake. Yael Biran (left) and Tal Yakobovitch at their wedding. (illustrative photo credit: courtesy)

In the past in other states, he said, the RFRA has been used by Muslims in federal prisons who petition on religious grounds to grow otherwise forbidden beards, by Jehovah’s Witnesses to refuse blood transfusions, and in Texas, by a Native American student whose religion forbade the cutting of his hair, to be exempted from a school dress code.

“The rhetoric is focusing on one narrow issue, which is important and concerns competing claims of dignity,” said Conkle, who added that he is for same-sex marriage and equal rights for gays. He feels, however opponents’ objections are “not really based on an informed understanding on what the law will do, but a concern that the law is signaling an end to gay rights.”

The real defect, said Conkle, is that “in most of the State of Indiana, regardless of this law, it is not illegal to discriminate against gays and lesbians.”

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