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Tuesday, March 31, 2015

"[P]rivate actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their...private religious beliefs."

From a letter thirty law professors sent Indiana governor Mike Pence while his party's legislative majorities were passing religious discrimination legislation:
In our expert opinion, the clear evidence suggests otherwise and unmistakably demonstrates that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs. As we have learned on the federal level, RFRAs do not “open a door” to conversation, but rather invite new conflict that takes the form of litigation. This collision of public rights and individual religious beliefs will produce a flood of litigation, whereby Indiana courts will be asked to rebalance what has been a workable and respectful harmony of rights and responsibilities in a pluralistic society.*

(*footnote to letter text) As of mid-February, 2015, 100 lawsuits have been initiated under the federal RFRA challenging terms of the Affordable Care Act. Similarly, scores of cases have been filed in which employers have sought an exemption from sex or sexual orientation based discrimination protections; business owners have sought to justify refusals of service to members of the public on the grounds that doing so would violate their religious beliefs; employers have terminated employees because the employee’s private conduct offends the employer’s religious beliefs; and licensed medical providers have refused to treat some patients, in violation of professional standards, because such treatment would violate their religious beliefs. See, The Becket Fund for Religious Liberty, “Our Cases,” http://www.becketfund.org/u-s-litigation/our-cases/; ACLU, “Using Religion to Discriminate,” https://www.aclu.org/using-religion-discriminate; and Religion Dispatches, http://religiondispatches.org/.

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