Ind.: Religious Freedom Legislation Considered by State Legislature

By Rosemarie Lally Feb 23, 2015

Senate Bill127, which would allow state and local governments to award contracts to companies and institutions that discriminate in hiring based on religion, passed the Indiana Senate Feb. 3, 2015, by a vote of 39-11 and was sent to the House for consideration.

The legislation would authorize government contractors claiming a religious affiliation to hire only workers who share their beliefs. Under its provisions, such entities would be permitted to take steps to confirm that "all employees and applicants conform to the religious tenets of the organization."

The bill’s sponsors claim the legislation is necessary to ensure that religious colleges that hire employees on the basis of religion, as permitted by federal law, continue to be eligible to receive state workforce training grants.

Two similar bills designed to provide greater protections to businesses and individuals with deeply held religious beliefs will be taken up by the Senate Judiciary Committee in February. Both bills, co-authored by Sens. Scott Schneider and Dennis Kruse, are modeled on the Religious Freedom Restoration Act, a 1993 federal law aimed at preventing laws that substantially burden a person's free exercise of religion.

S. 101 would prohibit state or local governments from substantially burdening a person's exercise of their religion unless the government can demonstrate that the burden advances a compelling governmental interest and is the least restrictive means of achieving that interest.

S. 568 is similar but more specific, allowing a person whose exercise of religion has been substantially burdened by a governmental action to assert the burden as a claim or defense in a judicial proceeding, regardless of whether the governmental entity is a party in the proceeding. The bill also would provide for injunctive and declaratory relief, compensatory damages, and recovery of court costs and attorneys’ fees.

Supporters of the proposed legislation say it would offer protection to business owners who object to providing wedding services, such as catering, photography, and flowers, to same-sex couples on the basis of their religious beliefs while opponents of the measures say they would legalize discrimination against gays and lesbians.

Meanwhile, a group of law professors and legal scholars said in a letter to Senate Judiciary Chairman Brent Steele that it is not clear that the proposed legislation would ensure the judicial recognition of a religious exemption. "Courts generally believe that anti-discrimination laws serve compelling governmental interests, and nothing in the proposed legislation would change that," their letter stated.

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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