At the national level, Americans are being led to ignore any number of critical and pressing issues through a media-and-activist-driven condemnation of a religious freedom statute just passed into law in Indiana. The hysteria has reached the point that companies that freely do business in communist China are boycotting Indiana, and Governor Dannel Malloy of Connecticut has implemented a travel ban to Indiana, despite the fact that his own state is on the list of those with such laws.
Rhode Island is also on the list, on the strength of Rhode Island law 42-80.1, the Religious Freedom Restoration Act, passed in 1993. Arguably, Rhode Island’s law is stronger than Indiana’s. Here’s the operative language in Indiana’s statute:
(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Here’s Rhode Island’s language, for comparison:
(a) Except as provided for in subsection (b), a governmental authority may not restrict a person’s free exercise of religion.
(b) A governmental authority may restrict a person’s free exercise of religion only if:
(1) The restriction is in the form of a rule of general applicability, and does not intentionally discriminate against religion, or among religions; and
(2) The governmental authority proves that application of the restriction to the person is essential to further a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.
In Indiana, religious people only have protection if the government’s restriction is “substantial,” and the government can impose even “substantial” burdens if it can “demonstrate” that it will “further a compelling governmental interest.” In Rhode Island, the government is not allowed to restrict the “free exercise of religion” at all, substantially or otherwise, unless it can “prove” that the restriction is “essential to further[ing] a compelling governmental interest.”
These may be shades of nuance, but given that the language is similar, with slightly more edge in Rhode Island: Is anybody aware of any Rhode Island cases in the last 22 years in which (A) this law has been cited and (B) in which it has won a case in a way that could reasonably be seen as permitting discrimination?