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Indiana not the first to have religious freedom law

“Religion is like a pair of shoes. Find one that fits for you but don’t make me wear your shoes.”

– George Carlin (1937-2008)

It’s hell to be a Hoosier this week. On March 26, the Indiana legislature passed SB 101, titled “Religious Freedom Restoration.” Gov. Mike Pence promptly signed it into law and the howls have rolled “from sea to shining sea.”

From bastions of social propriety like Miley Cyrus and Charles Barkley to the NASCAR organization, and points in between, SB 101 is decried as inviting discrimination, especially against homosexuals.

When asked on a national TV news show whether SB 101 permits discrimination on the basis of orientation, Pence alternately deflected, denied and defended the legislation. By midweek, he shifted and called for legislative action to clarify that the act does not in fact empower discrimination.

There have been calls for economic boycotts of Indiana’s products and several local governments have prohibited employees from official travel to Indiana.

The NCAA, which is holding its semifinals in Indianapolis, has condemned SB 101, and the mayor of that city has issued an executive order that orientation-based discrimination doesn’t fly in Indianapolis.

It might have gotten rough on Razorbacks this week, too, since the Arkansas legislature passed a very similar bill Tuesday. Immediate reaction against that legislation included a condemnation from Wal-Mart, Arkansas’ largest company.

That state’s governor, Asa Hutchinson, announced Wednesday he would not sign the bill until the legislature clarified it does not permit businesses to discriminate against members of the lesbian, gay, bisexual and transexual, or LGBT, community.

Regardless of your leanings, it’s a fact that Indiana and Arkansas are amongst some 20 states to enact a statutory promise of religious freedom. New Mexico is one of them.

How do those laws compare with ours?

Statutes purporting to protect religious freedom are nothing new. A federal version, the Religious Freedom Restoration Act, passed Congress and was signed by then-President Bill Clinton in 1993. The RFRA purported to prevent governments from impeding the free practice of all religions.

Although the federal law was found inapplicable to state governments in 1997, individual states have enacted similar laws.

The New Mexico Religious Freedom Restoration Act was established in 2000. The act provides state and local governments may not interfere with the free exercise of religion except through rules of general applicability to all religions and only where the restriction is both essential to furthering a compelling governmental interest and as narrowly tailored as possible to effect that compelling interest.

Where a governmental action interferes with religious freedom, the individual may assert religious freedom as a defense to any governmental enforcement attempt and may bring a civil lawsuit for injunction and damages.

New Mexico defines “free exercise of religion” as any action which is “substantially motivated by religious belief.”

Indiana’s new law defines the term as “any exercise of religion whether or not compelled by, or central to, a system of religious belief.”

Another real contrast between New Mexico’s approach to balancing religious and civil rights with that of Indiana and some other states, including Arkansas, is that New Mexico has also enacted the Human Rights Act, which prohibits governmental and private discriminatory practices on the basis of criteria such as age, gender, race, religion and, pursuant to a 2003 amendment, sexual orientation.

Critics argue Indiana, having already banned same-sex marriage, has with SB 101 established a legal basis for denying goods and services to LBGT citizens upon anyone’s subjective belief that their religion decries homosexuality.

Only one case in New Mexico has addressed these issues. There, a private photographer refused to cover a “commitment ceremony” for a lesbian couple because the photographer’s religious beliefs condemn homosexuality. The lesbian couple complained under the Human Rights Act’s prohibition against orientation based discrimination.

In August 2013, the Supreme Court decided Elane Photography v. Willock, and upheld the trial court’s ruling that the Human Rights Act’s prohibition on orientation based discrimination trumps the Religious Freedom Restoration Act and requires those engaged in providing public accommodations to offer the same accommodations to all who seek them.

The Supreme Court also confirmed that the Religious Freedom Restoration Act applied only where a government action affects religious freedom, not to disputes between private citizens.

You can “Judge For Yourself” whether states have a compelling interest in assuring all its citizens are treated equally, or whether any religious declaration, no matter how subjective, should immunize discrimination. I was the trial judge in the Elane Photography case, so you know where I stand.

Alan M. Malott is a judge of the 2nd Judicial District Court. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.