Indiana has recently adopted a state-level version of the federal Religious Freedom Restoration Act (RFRA), with similar requirements in terms of the legal standard for assessing state government or local powers that pass laws which interfere with the free exercise of religion. Originally the RFRA was adopted at the federal level in response to the Supreme Court decision in Employment Division vs. Smith, ruling that laws of general applicability are constitutional, even when they substantially burden the free exercise of religion. The RFRA creates a statutory requirement that courts evaluate laws that impact free exercise of religion using strict scrutiny: the law must serve a compelling governmental interest and use the least restrictive means. Twenty-three other states have adopted some version of the RFRA, since the USSC ruled the federal RFRA cannot be applied to the states.
The passage of an RFRA in Indiana (and a similar effort in Arkansas) sparked a national controversy, with gay rights activists and sympathetic journalists arguing that the RFRA is intended to allow and promote discrimination against gays by businesses and those engaged in the stream of commerce. Conservatives and others have pointed out that the RFRA has been around for 20 years and it has not been used to discriminate against gays, and the few attempts to invoke RFRAs in defense of say, a baker refusing to bake a cake for a gay marriage or a photographer refusing to work a gay marriage, the bakers and photographers have lost. Also, they think an important distinction exists between discriminating against gays generally (such as refusing to serve gays at a restaurant) versus refusing to engage in expressive conduct (taking pictures is artistic, so can be cake baking) for a specific event that conflicts with their religious beliefs, namely gay marriage.
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