Letter to the Indiana Legislature regarding Religious Freedom and “The Fix”

7 legal briefings that expose the danger Hoosiers now face.

I obtained a copy of a letter from AFA of Indiana that was recently sent to over 100 legislators who voted for RFRA or the RFRA “fix”. I’ve also read the legal briefings. I wonder how many legislators will want to read the legal reviews offered to them?

May 18, 2015

Dear Representative,

Greetings. I trust this letter finds you well and able to take a break with the end of the legislative session.

As you know, unfortunately, the 2015 session was marred by a baseless national hysteria over a religious liberty law that had not been controversial in the past.  RFRA’s had been in practice at the federal level for 22 years, and in statute or case law in 30 other states.

I was very critical of the “mobocracy,” the media distortions, and the lies that harassed this good law. I believe what happened with the “economic hostage takers” and our legislative reaction to their threats was appalling.  I still think it was something that would horrify our nation’s founders who sacrificed greatly to set us up as an ordered political system of safeguards and procedures, rather than a reactor to brute force as we see in Third World “banana republics.”

It is my opinion that the legislature took a law (SB 101) that wasn’t broken and broke it (SB50).  It took a longstanding religious liberty bill (RFRA) designed to help Hoosiers of all faiths, and turned it into a platform for ‘gay’ activists.  Nevertheless, I have tried to limit my comments about the revised law until I had more complete information.

I am not an attorney.  I look to those attorneys who routinely defend religious freedom in state and federal courts all over the US. The nation’s top religious liberty law firms and legal experts were asked to review our rewritten RFRA.  Here are a few of the things they said:

  • Former US Attorney General to Ronald Reagan, Ed Meese of the Heritage Foundation, reviewed SB 50 and told me, “It is a terrible law.”
  • The Beckett Fund for Religious Liberty also reviewed SB 50 and told me that it was “fraught with problems” and “poorly written.”
  • Michael Farris served as the co-chair of the 1993 drafting committee that prepared the original Federal RFRA legislation. He is the President of Patrick Henry College and the Home School Legal Defense Association.  He wrote:

“The amendments to the Indiana law contained in Senate Bill 50 were adopted as the result of a massive disinformation campaign about the intentions for RFRA and the legal meaning of its provisions.

While the detrimental legal implications of amending SB 101 with the language in SB 50 will no doubt be ultimately decided in court, it is clearly apparent that the language in SB 50 will now provide religious freedom protection for only a very narrow group of churches, religious organizations and a religious school affiliated with a church and pastors in certain circumstances. All other “individuals, partnerships, associations, limited liability companies, corporations and other organized groups of persons” are excluded from the religious freedom protection previously given them in SB 101.

Because of the passage of Senate Bill 50, Indiana citizens will now have less protection for religious freedom than do citizens in the 30 other states that have a RFRA either by statute or case law. Rather than creating parity with federal law, Indiana was forced by demagoguery into adopting the lowest legal standard in the nation for religious liberty.

The damage to the cause of religious liberty as a concept is incalculable. We have seen national business entities use their clout in a clearly coercive manner to force the legislature of Indiana to conclude that same-sex marriage is a higher value than religious freedom. Coercion of conscience was the chief evil that religious freedom was intended to eradicate. That coercion has just been politically sanctioned in Indiana.”

  • The Bopp Law Firm wrote in their review for Indiana Right to Life:

“The amendment [SB 50] raises serious constitutional problems under the First and Fourteenth Amendments to the United States Constitution. The most troubling of these issues is that the law singles out particular religious beliefs as disfavored and accords them lesser protection than other religious beliefs . . . As a policy matter, the amendment threatens to shrink the scope the protections afforded religious belief by Indiana’s RFRA significantly below the level of protection afforded by the federal RFRA. “The amendment could prevent a pharmacist, doctor, pharmacy, or other person involved in the provision of birth control products (e.g., birth control pills, condoms, etc.) from using RFRA as a defense to a law that would otherwise require them to prescribe or provide such products to unmarried minors.”

  • The Liberty Institute, the nation’s largest religious liberty law firm and authors of the book Undeniable: The Survey of Hostility to Religion in America concluded:

“It is our opinion that SB 50 is a significant and substantial change to SB 101 that, in many respects, gives Hoosiers even less protection for religious freedom than had SB 101 and SB 50 never been passed.   In effect, SB 50 removes protections that would have been recognized under Indiana’s Constitution. Not only does SB 50 remove these protections, it is particularly egregious because it explicitly permits criminal prosecution of religious adherents who are simply trying to be faithful to their religious convictions.”  

 “While SB 50 states that it does not “negate any rights available under the Constitution of the State of Indiana,” there is a difference between negating a right and defining the contours of a right, which is what SB 50 appears to do.”

“SB 50 also removes any religious freedom protections from those who have religious convictions that bathrooms should be gender segregated. Under the above analysis, any business or even religious schools that are not affiliated with churches may be forced to permit men to use the women’s restrooms without any religious freedom defense against doing so.”

“Ultimately, Hoosiers would have had stronger religious liberty protections had SB 101 and SB 50 never been passed than they now have with SB 50. This “fix” to the Indiana RFRA eliminates broad protections provided by all other state RFRAs and the federal RFRA and, because of Indiana’s constitutional ambiguity, may even reduce constitutional religious liberty protections for Hoosiers.”

  • Alliance Defending Freedom, which has argued more religious liberty cases before state and federal courts than any other religious liberty group, wrote two reviews noting:

“Indiana originally enacted a Rolls Royce religious freedom law, but it was amended on April 2, 2015. The result was a Lemon. Rather than ensuring that the same legal balancing test will be applied in every instance where government action substantially burdens religious freedom, Indiana’s new Lemon law now provides that, in certain situations, the government always wins.”SB 50 ensures that statutory religious-liberty protections will lose when the source of the religious conflict involves issues of human sexuality like sexual orientation or gender identity—topics that directly implicate the core religious teachings of virtually every religion.“  

  • The Liberty Counsel’s chief litigator in Lynchburg, VA, wrote:

“In one fell swoop, SB 50 establishes “sexual orientation” and “gender identity” as equivalent to religion . . . and eliminates any religious basis for business owners and companies objecting to either, in contravention of religious liberty rights recognized in Burwell v. Hobby Lobby Stores, Inc., S. Ct. 2751 (2014).”

I know that there are many who cling to the hope that our state constitution will protect religious liberty in spite of the RFRA “fix.” I have been told this very thing, and, obviously, I hope it is that case.   However, I can’t imagine the Brady Campaign reviewing and signing off on a major gun law behind closed doors, and legislators telling shut out NRA supporters not to worry, “we still have the 2nd Amendment,” and their drawing much comfort from that explanation.

If you care to read any of the six legal reviews I have, in their entirety, please let me know.   I am expecting a seventh review from the Thomas Moore Law Center very soon.  They recently argued a religious liberty case before the Indiana Supreme Court and called for our passage of SB 101 because of their experience in that case.

Best Regards,

Micah Clark

Executive Director

P.S.  – I also have two other reviews explaining the concerns and problems SB 50 creates with its promotion of “sexual orientation” and “gender identity” ordinances at the local level. Liberal activists began pushing those policies as soon as the RFRA “fix” was signed as a means of further eroding the remaining parts of RFRA.  As you know, these activists have made no secret about their desires to also codify those behavior-based rights into state law in 2016. They will likely repeat their own political coercion efforts with the support of the liberal media.

Note from the Editor:

I also have a copy of these legal briefings. If you would like copies of them, please email me!  

Educate yourself. The media will not tell you the truth. The lawmakers want to keep their seat. The 2015 RFRA battle was only the beginning. You must be prepared for wave 2 coming to a city near you and landing at the Indiana General Assembly next session. 

Please note: I reserve the right to delete comments that are offensive or off-topic.

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