As Prof. Daniel O. Conkle of Indiana University’s Maurer School of Law, a supporter of gay rights, including same-sex marriage, wrote last week in the Indianapolis Star: “The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a ‘license to discriminate,’ and it should not be mischaracterized or dismissed on that basis.”
People have asked why this is necessary. After all, the U.S. Constitution and the Indiana Constitution provide strong recognition of freedom of religion. But RFRA is in many ways overdue in Indiana.
In 1990 the U.S. Supreme Court ruled in Employment Division of Oregon v. Smith that the First Amendment’s free exercise clause could not be raised as a defense to generally applicable laws, even if the law infringed on a person’s religious liberty. In response, Congress passed and President Clinton signed the Religious Freedom Restoration Act in 1993. This law limits federal government action that would infringe upon religion to only those acts that did not substantially burden free exercise of religion, absent a compelling governmental interest and in the least restrictive means.