Lawyer by day, hacker by night, proud Navy veteran, writer, promoter of civility in political discourse, Philadelphia and Penn State sports fanatic, practicing philomath, bibliophile, enigmatologist, and last but certainly not least, Dad and Husband.
Garrett Epps is Right (and Wrong) on Indiana's RFRA
Indiana Gov. Mike Pence
In his latest article at the Atlantic, Professor Garrett Epps highlights two key differences between Indiana's recently-passed state RFRA law and the federal RFRA law. The first distinction is that Indiana's law provides explicit protection for for-profit businesses. The second distinction is that Indiana's RFRA provides a defense for claims against private lawsuits where the government isn't a party. Professor Epps is right that these two differences do not exist within the text of the federal RFRA law (or most state RFRA laws). But a cursory examination of these two issues shows that Professor Epps is wrong when he asserts that these differences are significant.
First, whatever one may think of RFRA protection for for-profit businesses prior to Hobby Lobby, that case is now the "law of the land" and its protection is effectively written into law. Epps suggest that, pre-Hobby Lobby, many believe this idea was "outlandish," but that's beside the point post-Hobby Lobby (I think it was perfectly reasonable, but we can agree to disagree here). So while the federal RFRA law does not contain the same language as Indiana's RFRA law, the end result is precisely the same. Any federal court ruling on a RFRA claim today would rule with the understanding that for-profit businesses are protected by RFRA. It is disingenuous to suggest that this provision is a significant difference from the federal law since Hobby Lobby. As to the states, Epps can point to only two (Louisiana and Pennsylvania) that specifically exclude for-profit businesses. It is not unreasonable to believe that other states may fall in line with the the federal interpretation, especially since some states, like Arkansas's recently passed RFRA, look to the federal courts for interpretation. Absent court decisions (beyond the singular Elane Photography) that specifically exclude for-profit businesses, it is a difficult leap to suggest this distinction is significantly different.
Second, Epps focuses on the language in Indiana's RFRA which provides RFRA protection "regardless of whether the state or any other governmental entity is a party to the proceeding." He then claims that "[n]either the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language." Again, this is a true statement, but it excludes important context. As Josh Blackman has pointed out, of the six federal Circuits that have ruled on the issue, four of them have held that the federal RFRA law may be used as a defense in a private lawsuit. Within these four Circuits (the Second, Eighth, Ninth, and D.C. Circuit), RFRA is a defense in a private lawsuit, just as it would be under Indiana's state RFRA. To be sure, the Supreme Court has not ruled on whether the federal RFRA extends to private party lawsuits. Blackman also points out that the Justice Department under Attorney General Eric Holder wrote that it believed Wheaton College (a private party) could use RFRA as a defense to a lawsuit by one of it's employees (another private party). Given that the majority of circuits that have ruled on the issue have ruled this way, consistent with the Justice Department's apparent position on the issue, it is puzzling for Professor Epps to exclude this information in his article. Based on the lack of state RFRA cases regarding private parties, this distinction (as it applies to state RFRAs) is most generously described as undetermined rather than significantly different.
Professor Epps points to two reasons why Indiana's RFRA law is significantly different from the federal RFRA, but these distinctions start to fade away once you take a closer look.