The problem with state RFRAs and the federal RFRA is that they are too broad and nontransparent. Indiana’s would give the Indiana Supreme Court the task of interpreting difficult legal terms such as “substantial burden,” “compelling state interest,” and “least restrictive means.” Indiana has been a reliably red state for a long time. I would not want a high court stacked with conservative appointees to be the ones making these determinations. They are not bound by what federal courts or other state courts have defined as “substantial burden,” “compelling,” or “least restrictive,” so all bets are off. (Also, it is not even the case that these terms are well defined at the federal level. In Hobby Lobby, the majority said that there should be no free exercise exemption for discrimination laws on the basis of race; the majority did not say that there can’t be a free exercise exemption for discrimination laws on the basis of gender or sexual orientation.)
Why does the legislature like the ambiguous RFRA standard? Because that gives the potential for the state Supreme Court to move the goalposts in a more expansive direction at a later period in time. It also insulates legislators from public accountability. They can simultaneously engage in double-speak where they can claim to their conservative religious constituents that they have opened up the possibility for more substantial religious free exercise, but also claim that the legislators haven’t really changed anything at all, should liberal backlash manifest.
A symptom of all this legislative finagling is widespread misinformation about what RFRAs actually do. The name itself, Religious Freedom Restoration Act, is misleading. RFRAs are not a return to federal Supreme Court jurisprudence prior to Employment Division v. Smith, when Scalia argued that there is no constitutional requirement for exemption from generally applicable laws. The jurisprudence prior to Smith was that you needed a compelling state interest and a narrowly tailored means. RFRA goes further. It says you need super-strict scrutiny: the means has to be the least restrictive, not just narrowly tailored. So RFRA is not a “restoration.” It is going further than the Sherbert-Yoder standard that existed prior to Smith. “Least restrictive” is particularly prone to judicial activism because then you could argue that corporations don’t need to provide contraception in health care insurance packages because the “least restrictive means” is for the government to provide it.
A better approach to religious accommodation would be for the state legislature to define explicitly what accommodations they want. If they want to say that retailers who do custom work do not have to provide custom-made goods to individuals and organizations, that is what the law should say. If they want to say that peyote is legal for groups that use it as a sacrament, that is what the law should say. If the legislature says that Jews can wear yarmulkes under their uniforms in the state militia, that is what the law should say. Then the public would be absolutely clear on what the law is doing. Instead, the “compelling state interest” and “least restrictive means” tests just leave too much ambiguity through which conservative-minded jurists can drive a truck through, leading to unintended or unpredictable consequences. Hence, you can get a decision like Hobby Lobby. Not many who voted for RFRA in 1993 would have imagined that religious exemptions would apply to closely held corporations.
Legislatures have acted to make specific religious exemptions. After the Smith decision, Oregon legislators passed a law themselves making an exemption for peyote use. Native Americans in Oregon did not need a state RFRA to get the accommodation. Similarly, when the Supreme Court said that the Amish should not get an exemption from paying social security taxes (US v. Lee), Congress passed a law allowing for that specific exemption. When the Supreme Court said that Jews should not get an exemption to wear yarmulkes in the military (Goldman v. Weinberger), Congress granted the exemption. Neither the Amish nor Jews needed the federal RFRA to get an exemption.
Indiana’s recent “compromise” is a step better, in that it clearly states that RFRA does not apply to employment and housing decisions, but it still leaves a lot of room for the Indiana Supreme Court to make decisions about potential exemptions from state laws. Better to just get rid of RFRA and specifically state what exemptions the legislature wants. It should also be noted that Indiana law still allows for discrimination against LGBT persons anyway, so boycotts of Indiana and other states that do not include specific employment and housing protections for LGBT persons should continue.
For a more expansive treatment of these issues see Marci Hamiltons’ article “The Case for Evidence-Based Free Exercise Accommodation” at: http://journals.law.harvard.edu/...