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How Would Courts Resolve These Indiana "Religious Freedom" Cases?

April 2, 2015

If nothing else, you have to give Indiana Republican Governor Mike Pence credit for going big. In April 2007, Pence defended Big War, comparing his heavily guarded tour of Baghdad to visiting "any open-air market in Indiana in the summertime." Four years later, then Rep. Pence took on Big Debt, declaring of the government, "Shut it down." That same spring of 2011, Congressman Pence branded Planned Parenthood "Big Abortion," and called for the total defunding of Title X funding that provide contraception, cancer screening and other medical services for six million women annually.
But with his crusade against Big Gay to preserve the controversial Indiana Religious Freedom Restoration Act he just signed, Governor Mike Pence has once again turned to the Big Lie. His repeated protests that "the law is not a 'license to discriminate'" are belied by its authors' claims that it would do just that. Just as damning is Pence's fabrication that the Hoosier Hate law "simply mirrors federal law that President Bill Clinton signed in 1993." As Garrett Epps helpfully documented in The Atlantic, Indiana's unique SB 101 is far broader than the federal RFRA law, the Supreme Court decision in Hobby Lobby and the 20 other state "religious freedom" laws:

[I]t has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals.

That's right. Any for-profit business can use RFRA as a defense against a discrimination action brought by any individual. The government need not be a party to the suit. And in Indiana, a state without civil rights protections for gay Americans, that license to discriminate is very real.
Nevertheless, supporters like Indiana University law professor Daniel Conkle insist that "despite all the rhetoric -- the bill has little to do with same-sex marriage and everything to do with religious freedom."

The bill would establish a general legal standard, the "compelling interest" test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion...
In any event, most religious freedom claims have nothing to do with same-sex marriage or discrimination. 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.

If so, what "valuable guidance" would the Indiana Religious Freedom Restoration Act provide to Hoosier state courts in these hypothetical cases?
Schwartz v. Chick-fil-A of Elkhart. Abu Bakr al-Said is the owner of the local Chick-fil-A franchise. But when Aaron Schwartz entered the store wearing a t-shirt reading, "Jerusalem: Israel's Eternal Capital," al-Said refused to serve and told him to leave the store. When Schwartz sued claiming anti-Semitic discrimination, al-Said turned to Indiana's RFRA law as a defense.
American Family Association v. Le Coq Mangeur Bistro of Indianapolis. Le Coq Mangeur Bistro, a French restaurant with a 4-start rating from the Michelin Guide, was praised by the New York Times as "the hottest seat in Indianapolis." But when the American Family Association tried to reserve the bistro for its annual advisory board meeting, chef and owner Derriere Chaude said no. As a gay man and devout member of the Disciples of Christ Church, Chaude declared his "deeply-held religious convictions" prevented him from hosting "apostles of bigotry."
O'Reilly v. Collins. Seamus Collins is an immigrant from Belfast, Northern Ireland who owns two rental properties in South Bend, Indiana. But when Notre Dame student William O'Reilly applied to lease an apartment, Collins said no. Recalling the murder of his mother by the IRA in 1981, Collins declared that "no Papists shall ever live under my roof." When O'Reilly brought suit, Collins pointed to RFFA in claiming the student would be "substantially burdening" his religious freedom as a Protestant.
International House of Prayer v. Senyonjo. The Kansas City-based International House of Prayer (IHOP) sought a property to open a campus ministry near Indiana University in Bloomington. But its 10-year lease proposal was rejected at the last minute by property owner Jonathan Senyonjo. Senyonjo, an Episcopalian immigrant from Uganda, objected to IHOP's role in propagating anti-gay legislation in his home country. IHOP sued, proclaiming in its response that "God loves Uganda."
Huckabee v. Fannie's Flowers. College sweethearts, Debbie Hutchison and James Huckabee looked forward to their wedding day in his small hometown of Nappanee, Indiana. But when florist Fannie Filmore just moments before the nuptials discovered Hutchison was five months pregnant, she ripped up Huckabee's check and returned her flowers to her delivery truck. When Huckabee sued, Fannie's Flower cited SB 101 as a defense. The company's Baptist owner could not, she said, "help consecrate a union conceived in sin."
Cardinal Timothy Dolan v. Boonville Clinic. Dr. Patrick O'Shea has run the Boonsville Clinic in the small Indiana town for 16 years. But when New York Cardinal Timothy Dolan showed up one Saturday night complaining of chest pain, O'Shea told him and his traveling companions they would have to go to a hospital in Evansville instead. A victim of clergy sex abuse and a member of SNAP (Survivors Network of Those Abused by Priests), O'Shea later told the press he could not treat "the mastermind of the Milwaukee cover-up." When Dolan, who as it turned out was suffering from a bout of heartburn, filed a lawsuit, his fellow Catholic cited his legal protections under Indiana's RFRA law.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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