Opinion: RFRA is not enough. Indiana needs more religious freedom protections.
A new year is an opportunity to reflect on the areas that we want to improve. One area in which Indiana has room for improvement is weak protections for religious liberty.
The Center for Religion, Culture, and Democracy recently released its second Religious Liberty in the States Index, an evaluation of constitutional and statutory religious freedom protections in each of the 50 states. Using 14 safeguards, the project measures each state’s success in protecting this first freedom.
In 2023, Indiana came in 38th place with a less-than-stellar score of 35%. As such, we are far behind neighbors Illinois and Ohio, which took 1st and 4th place, respectively. Indiana’s lawmakers should resolve to do better.
While the public typically looks to the Supreme Court to resolve religious freedom controversies, the High Court is not the sole guardian of the sacred right of conscience. The protection of religious freedom primarily takes place in the states through the legislative process.
Indiana made national headlines for doing exactly this in 2015 when it passed the Religious Freedom Restoration Act. Contrary to claims by critics, the law protects religious communities and individuals in Indiana from government coercion.
Under its terms, the government cannot substantially burden a person’s exercise of religion unless it has a “compelling interest” and is pursuing that interest by the least restrictive means.
But while RFRA is important, it is not sufficient. The best means of protecting religious freedom is to provide concrete protections for various practices and professions.
For example, most states have laws ensuring the protection of health-care workers with religious objections to abortion, sterilization, contraception, and other practices and procedures. And such laws are nothing new. They have existed at the state and federal levels since the 1970s when Roe v. Wade was handed down by the Supreme Court.
While Indiana offers limited protections for individual providers and private hospitals to refuse to perform abortions in accordance with their conscience, the state only scores 3 out of 20 for all of the health-care protections tracked by RLS.
Indiana can make progress in this area by passing a health care provision with open-ended conscience protections. It might model such a bill after South Carolina’s “Medical Ethics and Diversity Act,” which specifies that medical practitioners, public and private health-care institutions, and health-care payers have the right to refuse participation in practices and procedures that conflict with their "religious, moral, or ethical beliefs."
South Carolina skyrocketed to No. 2 in the Religious Freedom Index in part because this law went into effect last year. Such a bill would prevent Indiana’s many faith-based healthcare providers, some of which established the first hospitals in the state, from having to choose between their faith and their desire to serve.
Supporting religious freedom entails defending the principle that no one should be coerced to take actions that violate his or her conscience. The United States has a long tradition of providing such accommodations. For example, Quakers (a group with a long history in Indiana) were often persecuted for their refusal to take up arms, but the Continental Congress excused them from compulsory military service during the Revolutionary War.
Indiana is home to many religious organizations that contribute to the good of our community, including the Little Sisters of the Poor in Indianapolis, who serve the elderly, the Jewish Federation of St. Joseph Valley, which provides social services to the local Jewish community, and Sisters of Saint Benedict, one of the largest communities of Benedictine women in the United States, who have helped hundreds of immigrants become citizens.
The good done by these and other religious groups demonstrates that religious freedom is beneficial for all, even those who don’t practice any religion. Not only do religious organizations provide invaluable medical and social services for communities, but, as Justice Alito stated in a 2012 Supreme Court opinion, they have been “the preeminent example of private associations that have ‘act[ed] as critical buffers between the individual and the power of the state.’”
Religious freedom should be championed by all Indiana lawmakers. Let us resolve to improve our religious liberty protections in 2024 and beyond so the Hoosier State isn’t among the worst-performing quartile of states in upholding one of our most fundamental freedoms.
Deborah A. O’Malley is Associate Director of the Center for Citizenship & Constitutional Government at the University of Notre Dame and a research fellow at the Center for Religion, Culture, and Democracy.