You’re going to read this often in the commentary about Malloy’s travel ban. It’s in the comments to this article. And it’s in this disingenuously worded piece of commentary. The argument made is: how can Malloy object to Indiana when Connecticut has essentially the same law?
Believe me, I came to this question with an open mind. It would have amused me if Connecticut were caught in an act of ahistorical hypocrisy, and I like being amused. In a different way, it would please me to say that our law is not like Indiana’s. I’m happy either way. So let’s look at the facts.
Connecticut’s law is relatively old. It dates back to 1993. You can read the text here. The law is restricted to interactions between the government and a person, and it says that the government can’t burden the person’s “exercise of religion” except in furtherance of a compelling government interest and even then only when the burden is the least restrictive means of furthering that interest. That’s the whole law. You could say it screams out for court cases that will define terms like “exercise of religion” and “compelling government interest.” You could not say that it goes out of its way to define those terms on one side’s behalf. I was halfway into writing this post when Dan Klau, an actual lawyer, published his own take on it. He gives you some of the 1993 history here.
The Indiana law — read it here –is, of course, the modern, updated version. But that does not, in this case, mean “sleek.” The Indiana law is clunked up with new language, and most of that language is based on lawsuits from the intervening years. The purpose of the new language is almost invariably to make it easier for the party claiming religious injury to prove its case. Let’s pull this out of the realm of the abstract. Let us imagine that I am a communicant of the Church of the Giant White Serpent (CGWS). My church believes that blacks are inferior and that physically disabled people bear the mark of Cain. The First Amendment allows me to belong to such a distasteful church, provided I don’t go around inciting wrath. But now I would like to go a little further. I would like to open a lunch counter, and I would like to run it along the lines of my beliefs. What does the new Indiana law do for me?
1. Perhaps the biggest difference between Indiana and Connecticut is that the Indiana law does not restrict itself to state vs. person conflict. Instead it says I may make my argument “as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding.” At my CGWS lunch counter, I make blacks sit separately and I don’t let disabled people in at all. It’s my religion! The Connecticut law deals only with my rights vis a vis the state, but the Indiana law arms me against complaints from private parties. I can kick out the guy in the wheelchair, and I’m on firmer legal ground, even if he sues me. In Connecticut, I don’t really have any spelled out rights until the Attorney General shows up and tells me I have to seat African-Americans and blind people alongside my regular customers.
2. But wait. There’s more. Indiana’s law affirms that I can assert that my exercise of religion has been burdened “whether or not compelled by, or central to, a system of religious belief.” So I don’t even have to prove that my intolerance toward blacks and the disabled is a central tenet of the CGWS, just that it’s in the mix somewhere. (So don’t fall for the argument that Indiana’s law has a higher burden of proof because it uses the phrase “substantially burdened” while Connecticut’s does not. The Indiana law is in other respects explicit about how insubstantial the burden can be. Also, see item 3. )
3. What else can Indiana do for me? Well, it can say that I don’t have to prove a burden to seek relief. I can claim I am “likely to be substantially burdened.” What does that mean? I have no idea, but I hope my CGWS attorneys will argue that even the possibility that someone — a government agent or a private party — will show up and claim I’m in the wrong is more than my pretty little white head should have to bear.
4. The Indiana law spells out four forms of relief. Go ask Klau what that means. It’s certainly different from the CT law.
5. Is that it, Indiana? I mean, I’m just a little guy, a lunch counter owner whose religion contains important teachings about the pernicious nature of blacks and disabled people. What chance do I have if the government shows up claiming that it has a compelling interest in making me serve these children of a lesser god?
In Connecticut, that killjoy George Jepsen is probably going to shut down my racist lunch counter with the argument that it is not an exercise of religion. It’s just a damn lunch counter. George would say I’m not exercising my religion when I’m making and selling sandwiches.
But the new Indiana law includes, in its definition of a (possibly burdened) person “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.” Whoa! This is certainly not in the Connecticut statute. I am engaging in protected religious exercises when I’m making and selling (or refusing to sell) liverwurst sandwiches. Who knew?
In conclusion, anybody who tells you Indiana and Connecticut have the same RFRA law is a big fat liar.
Now, if my lunch counter refuses to serve gay couples, yet another difference kicks in which is not contained in the two laws. Connecticut affords specific protections from discrimination based on sexual orientation — oh God, please, don’t make me explain “quasi suspect classification!” — whereas Indiana does not. I suppose you could say that the new Indiana RFRA strengthens the capacity of business to discriminate against gays, as opposed to creating a whole new capacity. (Klau, any thoughts?)
What you cannot say, however, is that our beloved Porcupine has failed to note the similarities between the Connecticut and Indiana laws. They are not the same laws — in intent or letter.