Douglas Laycock
ROBERT E. SCOTT DISTINGUISHED PROFESSOR OF LAW
CLASS OF 1963 RESEARCH PROFESSOR IN HONOR OF GRAHAM C. LILLY AND PETER W. LOW
PROFESSOR OF RELIGIOUS STUDIES
ALICE MCKEAN YOUNG REGENTS CHAIR IN LAW EMERITUS, UNIVERSITY OF TEXAS AT AUSTIN

February 3, 2015
Hon. Brent Steele, Chair
Members of Senate Judiciary Committee
Indiana Statehouse
200 W. Washington St.
Indianapolis, IN 46204
RE:

Religious Freedom Restoration Act

Dear Senator Steele and Members of the Committee:
We write in support of the proposed Indiana Religious Freedom Restoration Act
(RFRA), which is currently before your Committee. The sixteen signers of this letter
endorse this legislation based on many years of teaching and scholarship on the law of
religious freedom. In this letter, we will explain our support for the legislation and address
some of the objections that critics might offer.
At the outset, we note that there currently are two versions of this legislation: SB 101
(as amended January 20, 2015) (authored by Sen. Kruse) and SB 568 (authored by Sen.
Schneider et al.) . We believe that SB 101 is generally well-crafted, although, as we explain
in the accompanying footnote, we would suggest several clarifying amendments in the
relief provision.1 With these amendments in place, we would endorse the particular
1

As it stands, Section 10 of SB 101 contains what appear to be two inadvertent phrasing errors. In
addition, it does not specifically authorize declaratory relief, nor does it explicitly state that, in private-party
litigation, a successful religious objector is entitled to a defense against any party as well as affirmative relief
against the government. In addition, we believe that the description of available relief should include a
provision permitting — but not requiring — an award of attorney fees, without which it might be difficult or
impossible for religious objectors, who often have limited resources, to employ counsel. As a result, we
believe that if SB 101 goes forward, Section 10 should be amended to read as follows (with suggested
omissions indicated with strikeout and suggested additions in italics):
Sec. 10. If a court or other tribunal in which a violation of this chapter is asserted in conformity with
section 9 of this chapter determines that:
(1) the person’s exercise of religion has been substantially [violated] burdened; and
(2) the governmental entity imposing the burden has not demonstrated that application of the
burden to the person:
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest;
the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against
the governmental entity. Relief may include declaratory relief or an injunction or mandate that prevents,
restrains, corrects, or abates the violation of this chapter. The court or tribunal also may award all or a
portion of the costs of litigation, including reasonable attorney fees, to a person who prevails against a
governmental entity under this chapter.
580 MASSIE ROAD • CHARLOTTESVILLE, VA 22903-1738 •
PHONE: 434-243-8546 • FAX: 434-924-7536 • DLAYCOCK@VIRGINIA.EDU

 language of SB 101. With respect to SB 568, we believe that the specific language of the
bill, as introduced, is problematic in various respects. But we understand that SB 568 is
likely to be substantially amended. We cannot endorse the current language of SB 568 and
of course cannot endorse an amendment that has not yet been offered. What we can do,
however, is offer our support, in principle, for SB 568 as well as SB 101, both of which are
designed to accomplish similar objectives.
More specifically, we support the core prohibition that each proposal would enact: that
governmental action may not substantially burden a person’s exercise of religion, even if
the burden results from a rule of general applicability, unless the government demonstrates
that application of the burden to the person is in furtherance of a compelling governmental
interest and is the least restrictive means of furthering that compelling governmental
interest.
The proposed legislation is part of a nationwide response to a 1990 Supreme Court
decision. Employment Division v. Smith, 494 U.S. 872 (1990), held that any religious
practice, even a worship service, can be prohibited if the law is “neutral and generally
applicable,” and whether or not there is any good reason for the prohibition or for refusing
a religious exception. But religious liberty is not a mere right to believe a religion with no
right to practice that religion. Religious Freedom Restoration Acts provide that religious
practice is protected, even if a law is neutral and generally applicable, unless the state has
a compelling reason to interfere.
The proposed Indiana RFRA is a version of the Religious Freedom Restoration Acts
that have been enacted at both the federal level (to govern federal law) and in nineteen
states: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Texas, and Virginia. A number of other states — including
Alaska, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina,
Ohio, Washington, and Wisconsin — have interpreted their state constitutions to provide
similar protection. All in all, the federal government and more than thirty of the fifty states
have provided, in one form or another, versions of the protections for religious liberty that
would be provided by this legislation.
The Indiana Constitution itself protects religious liberty to a considerable — but
uncertain — degree, based on various provisions in the Indiana Constitution’s Bill of
Rights. See IND. CONST., art. I, §§ 2-8. According to the Indiana Supreme Court, these
provisions protect religious freedom to a greater extent than Employment Division v. Smith.
But the Indiana Supreme Court has adopted a novel approach in its interpretation of the
Indiana Constitution, and it is not at all clear that this approach gives adequate protection
to religious freedom.
In Price v. State, 622 N.E.2d 954 (Ind.1993), the Indiana Supreme Court announced
that a law or regulation violates the Indiana Constitution if it imposes a “material burden”
on “a core constitutional value.” Price addressed freedom of political speech, but the court
has extended a similar analysis to religious freedom, declaring that the religious liberty
provisions of the Indiana Bill of Rights likewise protect “core constitutional values” that
cannot be “materially burdened.” The leading case is City Chapel Evangelical Free Inc. v.
City of South Bend, 744 N.E.2d 443 (Ind. 2001). According to City Chapel, the Indiana
2

 Constitution protects religious belief and practice even from neutral laws of general
applicability. See id. at 445-46. As a result, it provides protection beyond that afforded by
the Free Exercise Clause of the First Amendment, as interpreted in Smith.
The Indiana Supreme Court’s “material burden” analysis, however, is subtle, complex,
and underdeveloped. As the court explained in City Chapel, “there is within each provision
of our Bill of Rights a cluster of essential values which the legislature may qualify but not
alienate. A right is impermissibly alienated when the State materially burdens one of the
core values which it embodies.” Id. at 446 (quoting Price, 622 N.E.2d at 960). Such a
material burden is present if “the right, as impaired, would no longer serve the purpose for
which it was designed” by those who framed and ratified the Indiana Constitution of 1851.
Id. at 447 (quoting Price, 622 N.E.2d at 960 n. 7). In determining whether there is an
impermissible “material burden,” moreover, the court ostensibly “looks only to the
magnitude of the impairment and does not take into account the social utility of the state
action at issue.” Id.
Applying this analysis in City Chapel, the court permitted a church to challenge a
condemnation proceeding on religious freedom grounds. In so doing, however, the court
emphasized that the church, to prevail in its constitutional challenge, would be required to
carry “a very substantial burden of proof.” Id. at 451. In particular, the church would have
to establish that the condemnation of its building would “constitute a material burden, not
merely a permissible qualification,” on “its members’ right to worship according to the
dictates of conscience, the right freely to exercise religious opinions and rights of
conscience, or the right to be free from a government preference for a particular religious
society or mode of worship.” Id.
In speech cases, the Indiana Supreme Court has included an additional element in its
“material burden” analysis. Thus, as the court suggested in Price v. State and has reiterated
more recently, there is no “material burden,” and therefore no constitutional violation, if
the speaker’s actions cause “particularized harm” in a manner “analogous to conduct that
‘would sustain tort liability against the speaker.’” State v. Economic Freedom Fund, 959
N.E.2d 794, 805 (Ind. 2011) (quoting Price, 622 N.E.2d at 964). To this extent, despite the
court’s stated refusal to consider the “social utility” of challenged state action, it seems that
competing interests are permitted to influence the “material burden” analysis, albeit only
to a limited and uncertain degree. Assuming this additional component of the analysis
extends to religious liberty as well as speech, it introduces an additional complication,
making it more difficult to discern the scope of state constitutional protection.
In future cases, the Indiana Supreme Court might clarify or change its state
constitutional doctrine, but it is difficult to know the direction that any such doctrinal
revision might take. The court could read City Chapel expansively, or it could move in the
opposite direction, much as the United States Supreme Court, in Employment Division v.
Smith, dramatically curtailed the scope of religious freedom under the First Amendment.
Indeed, the Indiana Supreme Court, at the urging of a state agency or local government,
could completely repudiate the “material burden” analysis, declaring that City Chapel was
mistaken and that the Indiana Constitution provides no greater protection than Employment
Division v. Smith.
The proposed legislation would not replace or supplant state constitutional law. But it
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 would provide an additional and independent source of legal protection. And this protection
would be considerably more straightforward and easily understood than the uncertain legal
doctrine of City Chapel. The Indiana RFRA would clearly and directly call for a balancing
of competing interests, stating that substantial burdens on the exercise of religion are
impermissible unless they are necessary to serve compelling governmental interests. And
in so doing, the statute would adopt a test that already exists in federal law and in the law
of a majority of the states. By explicitly codifying this test in the Indiana Code, the
proposed legislation would give religious freedom more transparent and more secure
protection, explicitly instructing judges that religiously motivated conduct is legally
protected, subject to the compelling-interest test.
The message that some government officials take from Employment Division v. Smith
is that they have no obligation to make any religious exceptions, and that they don’t even
have to talk to religious groups or individuals seeking exceptions. By clearly telling state
and local officials that they have to consider burdens on the exercise of religion, a state
RFRA opens the door for discussion. These issues can often be worked out informally if
people will just talk to each other in good faith. The Indiana Religious Freedom Restoration
Act would help make that happen.
Although critics might suggest otherwise, the proposed legislation is hardly radical. As
we have noted, the standard the legislation would codify now applies to the federal
government and a majority of the states. And it was the standard for the entire country from
1963 to 1990, under the pre-Smith First Amendment doctrine of Sherbert v. Verner, 374
U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). In the places where this
standard applies, it has not been interpreted in ways that have caused problems for those
jurisdictions; if anything, these laws have been enforced too cautiously. Opponents of the
legislation may make unsupported claims about the extreme results that it would produce,
but they have no examples of judicial decisions actually reaching such results.
Some critics might point to the Hobby Lobby case, decided this past summer by the
United States Supreme Court. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751
(2014). The case has been misunderstood by people on both sides, but it ultimately
reinforces the conclusion that these laws have been very cautiously enforced. The issue in
Hobby Lobby was whether the federal RFRA protected the religious owners of closely held
for-profit businesses who objected to a regulation under the Affordable Care Act. That
regulation required large employers to provide certain forms of contraception that, in the
view of the religious owners of these businesses, sometimes caused abortions. The Court
concluded that RFRA entitled the owners to an exemption from the regulation.
But the key to the Court’s decision was that the owners could be exempted from the
regulation without affecting their female employees’ access to contraception. The Court,
in other words, found a win-win solution. The owners got to follow their religious beliefs;
their female employees got the contraception they needed. The Court did this by copying
the solution that the government had already put into effect for religious non-profits.
Instead of the companies providing contraceptive coverage themselves, their insurers or
third-party plan administrators would do so instead, with segregated funds not derived from
the employer. The insurers would recoup their costs from the savings from the reduced
costs of pregnancy and childbearing or from rebates on fees otherwise payable to the
health-care exchanges. The details of the accommodation are intricate, but the basic point
4

 is simple. Hobby Lobby was decided the way it was because the religious accommodation
would not require any of the female employees to do without. As the Supreme Court
explained, “The effect of the accommodation on the women employed by Hobby Lobby
and the other companies involved in these cases would be precisely zero.” 134 S. Ct. at
2760 (emphasis added). Justice Kennedy, concurring and providing the fifth vote,
emphasized that “there is an existing, recognized, workable, and already-implemented
framework to provide coverage.” Id. at 2786.
Not all the signers of this letter agree with the decision in Hobby Lobby. But we all
agree that given the comparatively narrow contours of the decision and the likely judicial
reaction to any claim by a for-profit business that is not closely held by a small group of
religiously united owners, Hobby Lobby does not create a license for businesses to engage
in conduct that undermines important public interests. Nor does it guarantee victories to all
or even most claimants who petition courts for exemptions from neutral laws of general
applicability.
The most common charge opponents make against RFRA legislation is that it is a
“license to discriminate.” It is no such thing. Hobby Lobby certainly provides no support
for this proposition. Indeed, the Supreme Court in Hobby Lobby specifically rejected
Justice Ginsburg’s suggestion, in her dissenting opinion, that the Court’s decision created
“the possibility that discrimination in hiring, for example on the basis of race, might be
cloaked as religious practice to escape legal sanction.” Id. at 2783. The Court explained
that “[t]he Government has a compelling interest in providing an equal opportunity to
participate in the workforce without regard to race, and prohibitions on racial
discrimination are precisely tailored to achieve that critical goal.” Id. To be sure, the Court
did not specifically address discrimination on other grounds or in other settings. Even so,
its language suggests that the Supreme Court, interpreting the federal RFRA, will be
reluctant to uphold religious objections to anti-discrimination laws.
We are confident that Indiana courts will likewise be inclined to resist such claims
under the Indiana RFRA. Protecting Americans from discrimination is generally a
compelling interest, and few claims to exemption from anti-discrimination laws are likely
to succeed.
In narrow circumstances, some claims to exemption from anti-discrimination laws
might properly succeed, especially when the anti-discrimination laws reach into religiously
sensitive contexts. For example, a state or local regulation or policy forbidding
discrimination on the basis of religion might give rise to a valid RFRA objection as applied
to religious organizations, including churches, synagogues, mosques, or other religious
bodies. The point may be obvious, but religious organizations, in selecting their own
members and employees, generally should have the freedom to prefer their fellow believers
— as opposed to nonbelievers or adherents of other faiths. As far as we can tell, current
Indiana law and practice generally is sensitive to this concern, providing exemptions for
religious organizations in appropriate circumstances.
But this is not universally true, as a pending controversy attests. Section 22-9-1-10 of
the Indiana Code precludes state and local contractors, apparently including grant
recipients, from engaging in various forms of employment discrimination, including
discrimination on the basis of religion. For most contractors and most grantees, the
5

 prohibition on religious discrimination is entirely appropriate, but the prohibition as written
contains no exception for religious institutions. According to media accounts, the Indiana
Attorney General’s office determined that the rule applied to Indiana Wesleyan University,
a Christian university that hires on the basis of religion, rendering the university ineligible
for state workforce training grants. A legislative fix is in the works, in the form of SB 127.
The Senate Civil Law Committee has unanimously approved this bill, which would protect
the religious freedom of religious institutions, including religious colleges, by exempting
them from this rule, in conformity with a similar exemption that exists in federal law. The
Indiana RFRA might have obviated the need for a specific legislative accommodation. In
any event, it would provide a basis for religious organizations to contest any future laws or
regulations that might prevent them from maintaining religious standards for membership
or employment.
One recent issue that has arisen is the possibility that religious owners of for-profit
businesses might use a state RFRA as a shield against discrimination claims. The only
prominent case involved a Christian wedding photographer who was sued after refusing to
photograph a same-sex commitment ceremony, believing she would thereby be promoting
an immoral act deeply at odds with her religious understanding of the meaning of marriage
and of weddings. See Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013).
Some of the signers of this letter support same-sex marriage; others do not. But the
issue here is different: should the law accommodate religious objectors by exempting them
from legal requirements that would force them to violate their religion by participating (in
their view) in the celebration of same-sex weddings? For many religious believers,
weddings are inherently religious events in which their participation must conform to
religious obligations. This creates a serious conflict for religious individuals who
personally provide creative services to assist with weddings. But whatever one thinks of
the arguments for and against exempting such individuals, it is not at all clear that the
proposed Indiana RFRA would lead courts to recognize such an exemption.
The religious claim in Elane Photography lost — even though New Mexico had a state
RFRA. In fact, the religious claim in Elane Photography never got a single vote from any
of the twelve judges that heard the case.2 The New Mexico Supreme Court held that its
state RFRA does not even apply when the religious objector has been sued by a private
citizen. That was almost certainly a mistake,3 and the proposed Indiana legislation makes
it clear that the Indiana RFRA would indeed apply in these circumstances. But even had
the New Mexico RFRA applied, the New Mexico Supreme Court — which appeared to be
unsympathetic to the religious claim — would likely have held that enforcement of the
anti-discrimination laws served a compelling interest by the least restrictive means.
Apart from specific services directly relevant to weddings, the specter of religious
business owners refusing to serve gays and lesbians is a myth. We are aware of only one
2
Including both the initial case before the state human rights commission and the various appeals, the
claim was heard by three Human Rights Commission judges, one state district judge, three state court of
appeals judges, and five Supreme Court Justices.
3

For an excellent student note explaining why this interpretation was wrong, see Shruti Chaganti, Note,
Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, 99 VA. L. REV.
343 (2013).

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 reported case, nearly thirty years ago, in which a for-profit business sought a religious
exemption from dealing with gays or lesbians simply because they were gay or lesbian.
That case involved employment rather than customers. And of course the religious claimant
lost, even though the court applied the standard to be codified in the proposed legislation.
State ex rel. McClure v. Sports and Health Club, 370 N.W.2d 844 (Minn. 1985). Courts
generally believe that anti-discrimination laws serve compelling government interests, and
nothing in the proposed legislation would change that.
Most RFRA cases, of course, do not involve anti-discrimination laws or disputes that
arise between private parties. Rather, they involve disputes between the government and a
religious individual or group. In a case just decided under the federal RFRA standard, for
example, a unanimous Supreme Court protected the right of a Muslim prisoner to practice
his faith by wearing a half-inch beard that posed no risk to prison security. See Holt v.
Hobbs, 135 S. Ct. 853 (2015).4 Like the federal RFRA, the Indiana RFRA will be available
to members of all faiths. It might be invoked by Old Order Amish, for example, to request
that they be exempted from having their photographs on state identification cards, 5 or to
request accommodation from traffic regulations that unnecessarily impair their religiously
based reliance on horse-drawn buggies.6 Or by Christian or Jewish students seeking
accommodation by public schools for their observation of Good Friday or Yom Kippur. Or
in a variety of other circumstances that might arise in the future but that are difficult to
anticipate in advance. General protection for religious liberty is important precisely
because it is impossible to legislate in advance for all the ways in which government might
burden the free exercise of religion.
State RFRAs have been important to the practice of religion in this country, and
especially to the practice of minority faiths. State RFRAs do not usually wind up applying
to large numbers of litigated cases. But they encourage government officials and religious
minorities to talk to each other and work out mutually agreeable solutions. And the few
cases that arise are often of intense importance to the people affected. We should not punish
a person for practicing his religion unless we have a very good reason. These cases are
about whether people pay fines, or go to jail — or, in the worst case, die — for practicing
their religion, in America, in the 21st century.
The possibility of dying for your faith because of government intransigence came to
The Supreme Court’s decision was based on a federal statute that serves as a companion to the original
federal RFRA. This companion statute, the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), adopts the same test as the original federal RFRA. See RLUIPA, 42 U.S.C. §2000cc–1(a).
4

5

This particular issue currently is before the Indiana House, which is considering legislation, HB 1631,
that would provide a religious exemption from the state’s existing photograph requirement as long as
alternative identification safeguards are in place. If the Indiana RFRA were in effect, it would not preclude
specific legislation such as this, but it would offer Amish and other religious objectors a legal basis for
seeking accommodation even in the absence of such legislation.
6

An issue of this sort arose in State v. Hershberger, 462 N.W.2d 393 (Minn. 1990). In this case, the
Minnesota Supreme Court considered Amish religious objections to a slow-moving-vehicle law that required
them to use fluorescent orange-red triangular emblems on their buggies. Applying a RFRA-like test under
the Minnesota state constitution, the court held that the state was required to accommodate the Amish by
exempting them from this requirement and by permitting them to use silver reflective tape and lanterns
instead.

7

 pass in a real case from Kansas. Mary Stinemetz needed a liver transplant. And because
she was a Jehovah’s Witness, the surgery had to be done without blood transfusions. A
bloodless liver transplant was available in Omaha, and it was cheaper than the liver
transplant with blood transfusions that was available in Kansas. But Kansas Medicaid had
a rule, a rule that it claimed was neutral and generally applicable: No out-of-state medical
treatment except for medical necessity. And religious obligations did not create a medical
necessity.
Kansas had not yet enacted its state RFRA, so the case had to be argued under the state
and federal constitutions. And Kansas argued that its courts should adopt the federal
constitutional rule, that of Employment Division v. Smith, and reject Mrs. Stinemetz’s
claim. The Kansas Court of Appeals eventually interpreted the state constitution to
incorporate the RFRA standard, and it held that Mrs. Stinemetz was entitled to an out-ofstate transplant. Stinemetz v. Kansas Health Policy Authority, 252 P.3d 141 (Kan. Ct. App.
2011). But by the time the litigation ended, her health had deteriorated to the point that she
was no longer medically eligible for a transplant; she died in 2012. 7 If a state RFRA had
been in effect, so that the legal standard were clear from the beginning, she would have
had a much better chance to live.
For all these reasons, we urge you to approve the proposed Indiana RFRA in order to
better secure religious liberty in Indiana. If we can be of further assistance, please feel free
to call on any of us. Institutional affiliations are for identification only; none of our
universities takes any position on this legislation.
Respectfully,
Prof. Daniel O. Conkle
Indiana University Maurer School of Law

Prof. Douglas Laycock
University of Virginia School of Law

Prof. Edward McGlynn Gaffney
Valparaiso University School of Law

Prof. Richard W. Garnett
Notre Dame University Law School

Prof. Thomas C. Berg
University of St. Thomas (Minnesota)
School of Law

Prof. Carl H. Esbeck
University of Missouri School of Law

Prof. Marie A. Failinger
Hamline University School of Law

Prof. Robert P. George
Princeton University
Harvard University Law School

Prof. Mary Ann Glendon
Harvard University Law School

Prof. Christopher C. Lund
Wayne State University Law School

See Brad Cooper, Jehovah’s Witness Who Needed Bloodless Transplant Dies, Kansas City Star (Oct.
25, 2012), http://www.kansascity.com/news/local/article310218/Jehovahs-Witness-who-needed-bloodlesstransplant-dies.html.
7

8

 Prof. Michael W. McConnell
Stanford University Law School

Prof. Michael J. Perry
Emory University School of Law

Prof. Frank S. Ravitch
Prof. Mark S. Scarberry
Michigan State University College of Law Pepperdine University School of Law
Prof. Gregory C. Sisk
University of St. Thomas (Minnesota)
School of Law

Prof. Robin Fretwell Wilson
University of Illinois College of Law

9