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Indiana and the Constitution
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The Indiana Religious Freedom Restoration Act of 2015 is constitutionally infirm and legally troublesome.

The circuitous constitutional route that brought about this statute began in 1990 when the Supreme Court ruled that the Free Exercise Clause of the First Amendment may not be used as a defense to violating the general laws of the land. In Employment Division v. Smith, a small group of Native Americans who had been fired from their jobs because drug tests revealed their use of peyote made applications for unemployment compensation, which the State of Oregon denied.

They appealed and claimed that their use of peyote, a hallucinogenic drug, could not be the basis for firing them from their jobs because it was a sacrament in their religion. The court ruled that the adherents to this religion had the same obligation to obey the laws that prohibit the use of peyote as all persons do.

In response to that decision, and wanting to show an interest in an issue of constitutional liberty for a change, Congress enacted the federal Religious Freedom Restoration Act of 1993 (RFRA), a clumsy effort to overturn the Employment Division v. Smith ruling.

That statute basically required the federal government and the states to permit the “my religion made me do it” defense wherever there was an arguable claim that a general law of the land conflicted with a genuine religious practice or belief. The statute also mandated an exacting due process standard, called strict scrutiny, that the courts are to apply to the states’ enforcement of their laws when addressing an alleged clash between a general law applicable to everyone and a free exercise of religion claim.

Four years later, when the Roman Catholic Archbishop of San Antonio, Texas, claimed the protection of RFRA to justify an exemption to a local zoning law so that an old church could be expanded, and lost, he appealed, and the case made its way to the Supreme Court. In Boerne v. Flores (1997), the court found RFRA to be unconstitutional. It ruled that Congress had effectively redefined the meaning of the Free Exercise Clause and mandated the judicial standards to be used when assessing claims made under it, and that that definition and mandate are not properly Congress’ to make. Because Congress’ powers under the Fourteenth Amendment are limited to remedying state failures to protect fundamental liberties and do not extend to defining the meaning or parameters of constitutional provisions, the court invalidated RFRA.


Thus, it is clear that one may not violate any law, state or federal, and escape the consequences of that violation on the basis that one’s religious views compelled the disobedience. Were this not the case, then nothing would prevent animal sacrifice, the use of mind-altering drugs, and even racial or gender or national origin discrimination in public accommodations and housing — all allegedly based on one’s claimed religious views. The federal Civil Rights Act of 1964 prohibits discrimination in housing and public accommodations based upon race, gender, religion, beliefs or national origin, and quite properly permits no religious-based defense.

In response to the invalidation of RFRA, many states enacted their own form of RFRA, and most states added sexual orientation to the litany of prohibited bases for discrimination in public accommodations and housing. Indiana has not added the prohibition on discrimination based on sexual orientation; yet its own RFRA statute, signed into law last week, provides a “my religion made me do it” defense to allegations of discrimination based on sexual orientation. Hence the belief and fear that the Indiana statute is an affirmative attempt to provide a lawful basis for such discrimination. Such an attempt would surely run afoul of the Supreme Court’s invalidation of a Colorado constitutional provision that purported to do the same in Romer v. Evans (1996).

The legal issues attendant upon the judicial enforcement of this Indiana statute are enormously complex. They would amount to judges determining the centrality and sincerity of a person’s claimed religious practices to the core teachings of his religion. This type of determination by judges could only come about by an inquiry unknown in American jurisprudence (“Is this really taught by your church?” “Do you really believe this?” “How is your refusal to sell goods or services to this person central to your religious beliefs?”) and prohibited by the Free Exercise Clause, which the courts have held bars such judicial inquiries.

In the days before the federal Civil Rights Act of 1964, the late Sen. Barry Goldwater offered a neutral, non-racist common-law argument based on morality and property rights against that landmark legislation. He articulated the view that a seller of goods or services or real estate has a natural right to decide to whom he wishes to sell, free from government commands.

Goldwater paraphrased Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it. Today in America, if you operate a public accommodation or deal in real estate, you cannot choose your customers; they choose you. This Indiana statute is arguably an effort to bring back the pre-1964 days with respect to sexual orientation.

Because discrimination based on sexual orientation is not prohibited by the Civil Rights Act of 1964, Indiana and all other states are free to prohibit it or to look the other way in the face of it. But they are not free to encourage it or to make it lawful.

Copyright 2015 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Constitutional Theory, Gays/Lesbians 
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  1. Why do libertarians these days tie themselves up in knots to avoid a straightforward defense of freedom of association when it is so plainly being infringed upon? Sure, no one should have to put forward and defend a religious reason to avoid associating with anyone he or she does not want; but that’s just because no one should have to associate with anyone he or she does not want *for any or no reason whatsoever*! Is that so hard to say? The cowardly silence, hypocrisy, and tap-dancing obfuscation of libertarians on this issue is deafening. They really just want desperately to be socially fashionable (perhaps for the first time in their lives) and on the side that’s winning.

  2. Anonymous • Disclaimer says:
    @Michael Soren

    I agree whole-heartedly. How difficult is it to defend the principle that no free person should be compelled by force, violence or a threat to a person or property to perform an act against their will? Why a person doesn’t wish to perform an action has nothing to do with their right not to be placed in involuntary servitude to someone else.

  3. Wally [AKA "BobbyBeGood"] says: • Website
    @Michael Soren

    What Libertarians are you talking about and what do they say about this issue?


    • Replies: @Michael Soren
  4. @Wally

    Messrs. Napolitano and Gillespie. Both blather endlessly about the side issues of religious pretext and the right of corporations to boycott states, distracting attention from their sweeping dismissal of the more fundamental issue of freedom of association. I haven’t seen anything from Caplan or Cowen but I’m not optimistic. Surprise me.

    • Replies: @GW
  5. Goldwater paraphrased Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it. Today in America, if you operate a public accommodation or deal in real estate, you cannot choose your customers; they choose you. This Indiana statute is arguably an effort to bring back the pre-1964 days with respect to sexual orientation.

    Weasel-talk. Sellout. Coward.

    • Replies: @Toddy Cat
  6. @Michael Soren

    Totally agree. Napolitano is really reaching on this one.

    To paraphrase another blogger, if you allow government to force a baker to bake a cake for a homosexual, you are de facto granting government the power to force a black man to pick another man’s cotton.

    Free association should mean free, without religious or any other reason and government should stay out of it.

  7. Toddy Cat says:
    @The Anti-Gnostic

    “pre-1964 days”

    Oh, surely not! Not the dark days of low murder rates, low divorce rates, intact families, freedom of association, and civilizational self-confidence? Oh, please, anything but that!

  8. J Yan says:
    @Michael Soren

    Judge N. is saying backhandedly that the correct and constitutional way of restoring these freedoms of association is to change or repeal the relevant laws that the Civil Rights Act of 1964 put in place.

  9. @J Yan

    He’s no longer a member of a State guild, just a State pensioner at this point so the “Judge” should be dropped.

    I bet with a little digging I could find something by Napolitano praising civil disobedience, or jury nullification, or disobeying immoral or unjust laws.

    Libertarians have now established their complete uselessness.

    • Replies: @J Yan
  10. J Yan says:
    @The Anti-Gnostic

    Heaping junk laws on top of unjust laws is neither civil disobedience, nor jury nullification, nor disobeying.

  11. @J Yan

    No, I’m afraid that theory doesn’t wash. While the Civil Rights Act does substantially violate freedom of association, it does not mention sexual orientation. There’s no legal need to repeal it to stop governments from forcing people to cater gay weddings. But one would need the courage of one’s convictions to stand up and state clearly that that is what the government needs to be stopped from doing.

    And that is where Napolitano fails here.

  12. GW says:
    @J Yan

    Why is this a prerequisite? Why not do what the left does, and have judges rule statutes they don’t like as unconstitutional (there’d be good reasons for this since the 1964 act violates the 1st amendment’s language on freedom of association)?

  13. GW says:
    @Michael Soren

    Here you go:

    He explicitely defends discrimination, saying that anti-discrimination laws restrict freedom.

    • Replies: @Michael Soren
  14. @GW

    Yay for Ryan McKaken. Never heard of him before but hope to more in the future. Too bad about the Mises Institute disclaimer but I guess that’s standard. A Suzanne Schaefer at Students for Liberty also defends the law, although also with a disclaimer and largely on the grounds that it benefits religions other than Christianity (whew, thanks for clearing *that* up!). Over at YAL, crickets.

    OK, so some of the small fry still have some principals. Where are the big guns?

  15. Matra says:
    @Michael Soren

    Mish Shedlock also opposes Indiana. Libertarians almost always side with the one percenters.

  16. Marty T says:

    This article is confusing and misleading. Most states do NOT have homosexuals as a protected class, and this includes MOST states with their own version of RFRA. Napolitano is implying that about 15 states are back in the 1950s. If only.

  17. Bert says:

    Poor little libertarians. Try as they might, they just can’t get anyone to take them seriously.

    • Replies: @MarkinLA
  18. MarkinLA says:

    You hear the word liberty and then go to the Reason web site. You read the comments and realize what kooks they are.

  19. Why has the phrase “conscientious objector” not been used to describe people who don’t want participate in some transaction for their own reasons? Liberals and the Supreme Court went to a lot of trouble to carve out space for individuals who won’t fight for their nation in wartime.

    Surely some accomodation can be made for people who don’t want to deliver a FrootLoop encrusted cake with two dudes on it to a reception they would not attend as a guest?

    Use it in a sentence today! “I conscientiously object to circumcizing your daughter, even though i am a licensed surgeon.”

  20. Agreed Broadminded which, btw, I am too which, btw, is my reason for not attending gay weddings.

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