Pence signs controversial religious freedom bill in private event

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Published: Friday, 27 March 2015 00:50

Including full text of new law ...

INDIANAPOLIS – Gov. Mike Pence signed a controversial bill into law Thursday that supporters say protects residents’ rights to adhere to their religious principles but critics claim legalizes discrimination, particularly against gay Hoosiers.

Pence’s decision to say yes to the Religious Freedom Restoration Act comes despite threats from some business leaders and convention organizers that they could take their business elsewhere if the divisive measure became law. And it comes among a cry from critics that the law is embarrassing for Indiana.

The governor signed Senate Bill 101 behind closed doors but with supporters at his side and later issued a statement saying that it is not about discrimination.

“If I thought it legalized discrimination in any way in Indiana, I would have vetoed it,” Pence said.

Instead, he said the bill is about supporting “the freedom of religion for every Hoosier of every faith.”

The bill – which passed with support of majority Republicans and opposition from most Democrats – sets standards for courts as they consider cases in which individuals or businesses decline service to customers because they say the action violates their religious beliefs. It is meant to limit government action that would substantially burden the free exercise of religion.

Congress passed a similar law more than two decades ago and 19 other states also have religious freedom acts. In at least 11 more states, courts have set the same precedent.

Indiana Right to Life President Mike Fichter said Thursday that it was time Indiana joined them.

“Indiana legislators are wise to ensure religious beliefs will get due consideration in court, should Hoosiers be forced to act against their faith,” he said. The measure “is an important bill to protect the religious freedom of Hoosiers who believe the right to life comes from God, not government.”

Pence also points to a recent U.S. Supreme Court decision that held – based in part on the federal religious freedom law – that Hobby Lobby can’t be forced to provide some birth control coverage to its employees because it violates the owners’ religious beliefs.

Pence said that ruling only applies to federal law, not to state actions. And the governor said “many people of faith feel their religious liberty is under attack by government action.”

But critics blasted the governor’s decision. Many said the Indiana law – which was largely opposed by the business community – will hurt the state’s economy. They used words like shameful, sad and embarrassing to describe the governor’s action.

“Today marks a giant step backward for Indiana,” said House Minority Leader Scott Pelath, D-Michigan City. “We are allowing people to discriminate against others under the phony cover of religious belief.

Jane Henegar, executive director of the American Civil Liberties Union of Indiana, said the timing of the bill is important and explains its intent. It comes the year after conservatives lost their fight to put a ban on same-sex marriage into the Indiana Constitution and federal courts overturned the state’s statutory ban on gay unions.

“We are deeply disappointed that the governor and state lawmakers have been tone-deaf to the cries of legions of Hoosiers – including businesses, convention leaders, faith communities and more than 10,000 people who signed petitions against the bill – who say they don’t want this harmful legislation to impair the reputation of our state and harm our ability to attract the best and brightest to Indiana,” she said in a statement.

Henegar acknowledged the bill is constitutional “on its face.” But she said the key will be how the law is implemented, particularly in relation to people who are lesbians, gay, bisexual and transgender.

“The ACLU will remain vigilant to the effects of SB 101 and we will continue to push lawmakers and the courts until all members of the LGBT community receive the Constitution’s full protection from discrimination and unequal treatment,” she said.

Pence said in a statement that he’s confident in the “hospitality, generosity, tolerance, and values” of Hoosiers.

But he said “faith and religion are important values to millions of Hoosiers and with the passage of this legislation, we ensure that Indiana will continue to be a place where we respect freedom of religion and make certain that government action will always be subject to the highest level of scrutiny that respects the religious beliefs of every Hoosier of every faith.”

Here is the full text of Indiana’s “religious freedom” law:

SENATE ENROLLED ACT No. 101

AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana:

SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Sec. 10. (a) 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 burdened, or is likely to be substantially 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. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.