Is RFRA Used to Discriminate? Becket Lawyer: ‘I Can’t Think of Any Case’

By Brittany M. Hughes | April 2, 2015 | 9:39 AM EDT


Gov. Mike Pence (R-Ind.) at RFRA's signing. (Photo Courtesy of Pence's Office and The Heritage Foundation)

( - While controversy continues to swirl around Indiana’s recently enacted Religious Freedom Restoration Act, which some are calling a state-sanctioned license to discriminate against gays and lesbians, Senior Counsel Lori Windham of The Becket Fund for Religious Liberty, a non-profit public interest law firm, said she “can’t think of any case where RFRA has been used successfully to defend discrimination.”


“The Supreme Court said long ago that the government has a compelling interest in eliminating racial discrimination, and that’s the test that is used in RFRA for when the government may restrict religious freedom,” Windham told

“There have been a couple of cases, like the photographer in New Mexico, where people have asserted religious objections to participating in a same-sex wedding. Those cases also involve other important rights, like free speech,” she added, pointing out that “the wedding photographer lost that case.”

Signed by Republican Gov. Mike Pence last week, Indiana’s new law bears strong similarity to the federal RFRA of 1993, and “Prohibits a governmental entity from substantially burdening a person's exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest.”

Indiana's RFRA also “provides a procedure for remedying a violation,” which includes allowing a person who believes their rights to religious expression have been violated to bring their concerns before the courts.

References to sexual orientation or gender identity are not found in the three-page piece of legislation.

“The Indiana law doesn’t even mention sexual orientation or gender identity,” Windham notes of Indiana’s RFRA. “The federal law also does not mention sexual orientation or gender identity, and I am not aware of any other state RFRAs that do so, either.

“It does what all RFRAs do: sets up a balancing test,” Windham explained. “It tells the government to strike a balance between religious freedom and other interests. It doesn’t say who will win the cases. It just sets the terms of the debate.

“There’s been a lot of misinformation floating around about this law,” she added, saying that “News reports and commentators have focused heavily on hypothetical cases about gay rights, and have ignored the real cases where RFRAs help real people.”

But RFRAs, which exist both at the federal level and in 20 states besides Indiana, have a long-standing history of protecting religious liberty for people of all faiths, Windham said.

“In Philadelphia, the city tried to stop religious groups from feeding the homeless in city parks,” Windham said. “You could have a food truck on the street to sell to tourists, but not a table in the park to feed the homeless. The ministries used the Pennsylvania RFRA to stop the city’s overreach. Now they can continue their ministry of helping those in need.

“Similar cases have happened across the country. These are the real RFRA cases we should be talking about.”

Windham also pointed to a case in Kansas in which a woman’s death may have been prevented if the state had had a RFRA.

“In one sad case, a Jehovah’s Witness woman actually died waiting for a liver transplant because there was no state RFRA to protect her,” Windham said. “Because of her religious beliefs, she needed to receive a liver transplant without a blood transfusion. But Kansas Medicaid wouldn’t cover it—even though it was a cheaper procedure. She had to fight a long court battle trying to protect her rights because the law was unclear. Kansas eventually passed a state RFRA, but it was too late to save her life.

“Laws like this make a difference in the lives of Americans of all faiths,” she added.

Similarly to these cases, USA Today published a list of eight cases in which Americans were protected by the federal RFRA passed in 1993, including RFRA victories by Native Americans, Sikhs, Christians, Jews and Muslims. 

The bill was originally introduced by Sen. Chuck Schumer (D-N.Y.), who at the time was a member of the House of Representatives. The RFRA passed with bipartisan support from both Houses and was ultimately signed into law by former President Bill Clinton, the article points out.

After facing heavy backlash from the left over Indiana’s RFRA, Pence pledged on Tuesday to sign a legislative “fix” to the law to clarify any concerns over the law’s stance on discrimination by the end of the week – a move Windham says isn’t needed.

“If Indiana wants to make it clear that RFRA is not a license to discriminate, that’s fine, but it shouldn’t be necessary,” she explained.

“The federal RFRA and overwhelming majority of state RFRAs don’t include that sort of language. If the sky hasn’t fallen in 20 years under the federal RFRA, I don’t think it will fall tomorrow.”