Yesterday, Indiana Governor Mike Pence signed into law a Religious Freedom Restoration Act (RFRA). One of the only posts I’ve seen that attempts to look at the language of the new law is from Professor Friedman at the Religion Clause Blog. He identifies three ways that the Indiana RFRA deviates from the federal RFRA.

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  [1] It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes “a corporation”, without limiting this to closely-held companies.  [2] The bill’s protections may be invoked when a person’s exercise of religion is “likely” to be substantially burdened by government action, not just when it has been burdened.  [3] The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

First, Section 7.3 of the law provides that it covers certain types of corporations:

(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.

Recall that the Dictionary Act, which applies to RFRA, defined a “person” as a “corporation.” Only Justices Ginsburg and Sotomayor dissented from this part of Hobby Lobby. In that decision, Justice Alito (roughly) defined a corporation protected by RFRA as a “closely-held” one. The language in Section 7.3 seems to do more or less the same. In almost all cases, if “the individuals” with “system of religious beliefs” have “control and substantial ownership,” then it would be closely held. This portion tracks the federal standard rather closely. I can imagine a situation where the majority shareholder of a public corporation has a system of religious beliefs and the public corporation invokes them. But that seems quite far-fetched–and not necessarily foreclosed by Hobby Lobby’s definition of “closely-held” either.

Second, Section 9 provides protections for “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened.” While it is true that the “is likely to” language does not appear in the federal RFRA, I don’t think it adds anything.  It’s effectively asking if there will be a likelihood of success on the merits. In the case of Hobby Lobby a pre-enforcement challenge was brought, claiming that they were likely to have a substantial burden. No burden was ever inflicted. I’m not sure what else the “likely” language adds.

Third, and most significantly, the law provides a defense in a private suit where the government is not a party.The Indiana RFRA offers the following language:

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.

In other words, the law provides a defense against a private discrimination suit. For example, Jill and Jane Doe sue a photographer for failing to photograph their wedding under a local non-discrimination ordinance. The photographer than raises the state RFRA as a defense. Even though the government is not a party, RFRA can be raised as a defense in the judicial proceeding. The court would have to determine whether the application of the non-discrimination ordinance substantially burdens the photographers exercise of religion.

Does the federal RFRA also provide a defense? It depends on what Circuit you’re in. Shruti Chaganti writes in the Virginia Law Review about this split.

The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.

Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:

Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.

It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”

RFRA by its terms does not apply to suits between private parties.

Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate[] . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[] forward” with any evidence.[8] In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.[9]

All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.

This could prove interesting if this issue comes before the Court.

Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.

Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.

And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).

RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000)Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).

It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.

Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.

In the Elane Photograph case, the New Mexico Supreme Court, interpreting its own RFRA, ruled that it could only be invoked when the government was a party, but not when private parties were sued by state law. The Indiana bill makes clear that the defense can be raised in any case, as have four courts of appeals covering nearly half the states in the Union.

Interestingly, as noted in this amicus brief by the Becket Fund in the Elane Photography case, DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties:

In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (‘RFRA’).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).

So the most controversial aspect of the Indiana law was endorsed by the Holder Justice Department. [Update: I should stress that at the time, DOJ limited the applicability of RFRA to “religious organizations,” such as Wheaton College. But following Hobby Lobby this position is no longer tenable.]

There here we have it. Indiana, as well as Arizona’s RFRAs are very similar to the Federal RFRA. In contrast, Mississippi’s RFRA, which only requires a “burden,” not a “substantial” one, deviates significantly from the federal statute.

I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.

Update: I address this topic at greater depth in National Review and here.

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