Here's a look at history of 'religious freedom' laws

WASHINGTON – The 1993 federal law protecting religious freedom, to which Gov. Mike Pence has pointed as the model for the state's controversial new law, grew out of two Native Americans' use of peyote in a religious ceremony.

The law sparked state versions after the Supreme Court said in 1997 that the federal statute couldn't apply to state and local governments.

But the Supreme Court expanded the application of the law at the federal level last year by ruling that its protections apply to closely held corporations that did not want to include contraceptive coverage in their health insurance plans.

Pence cited the court's decision in the Hobby Lobby craft store chain's dispute over contraception as an example of why Indiana needs its own law.

Here's how we got to that point:

• April 17, 1990: Supreme Court changes standard for the First Amendment's guarantee of the free exercise of religion.

The Supreme Court ruled against two Oregon drug and alcohol counselors who had been fired by a private drug rehabilitation organization for ingesting the hallucinogen peyote as part of a religious ceremony at their Native American church. Ingesting peyote was illegal in Oregon.

In a 5-4 decision, the court said the use of peyote was not protected by the First Amendment's guarantee of the free exercise of religion.

Justice Antonin Scalia wrote that allowing someone to break a law because of a religious belief "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."

As a result, governments no longer had to prove a compelling interest for a law that violated someone's religious belief. Instead, the new test became whether the law was religiously neutral and generally applicable.

• Nov. 16, 1993: President Bill Clinton signs new law.

Backed by a broad coalition of religious and civil liberties groups, Congress passed the Religious Freedom Restoration Act of 1993. Lawmakers said they needed to restore the "compelling interest" test the Supreme Court rejected in its 1990 decision. Introduced by Democrats and passed with a near-unanimous vote, the legislation said a government can "substantially burden" a person's exercise of religion only if it advances an important government interest and does so in the least restrictive way possible. When Clinton signed the bill, he said it "re-establishes a standard that better protects all Americans of all faiths in the exercise of their religion."

• June 25, 1997: Supreme Court rules the Religious Freedom Restoration Act doesn't apply to states.

In a case involving the archbishop of San Antonio's dispute with local zoning authorities over a church expansion, the Supreme Court ruled 6-3 that the Religious Freedom Restoration Act is unconstitutional as applied to states. Justice Anthony Kennedy wrote that Congress lacked the authority to impose the law on states. He also said Congress hadn't shown a record of extensive denials of religious liberty and had acted out of proportion to what it was trying to achieve.

• Feb. 21, 2006: Supreme Court upholds Religious Freedom Restoration Act at the federal level.

In a unanimous decision, the court said a small religious sect could continue to import a hallucinogenic tea used in religious ceremonies. The tea contains a drug prohibited by federal law. Chief Justice John Roberts wrote that the Religious Freedom Restoration Act requires the government to show a compelling interest in banning the organization's use of the drug for religious purposes, and it had not done so.

By the time of the ruling, 13 states had passed their own versions of the federal law, in reaction to the court's previous decision that it didn't apply to states.

• June 30, 2014: Supreme Court upholds religious challenge to Affordable Care Act.

A divided Supreme Court ruled that closely held corporations can decide for religious reasons not to include contraception coverage in health insurance plans offered to employees.

The five justices in the majority characterized their opinion as a narrow ruling applying to four types of birth control and to the two family-owned corporations that brought the challenge — the Hobby Lobby craft store chain and Conestoga Wood Specialties, a Mennonite-owned cabinet maker. But the four justices who dissented said the ruling expanded the Religious Freedom Restoration Act to protect companies.

Justice Ruth Bader Ginsburg said the ruling "invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith." She said, for example, that a company could decide that covering vaccinations or paying the minimum wage violates their religious belief. And she noted past religious freedom challenges brought by a restaurant chain that didn't want to serve African-Americans and by a photography studio that didn't want to take pictures at a lesbian couple's commitment ceremony.

Kevin Russell, a former Supreme Court law clerk who argues frequently before the high court, wrote in an analysis after the decision that the court has never decided whether the government has the compelling interest required by the Religious Freedom Restoration Act to ban discrimination based on sex, disability or sexual orientation.

"It seems likely that the debate will have to be settled in further litigation," he wrote.

• March 26, 2015: Pence signs Indiana's Religious Freedom Restoration Act.

Citing the Supreme Court's decision in the Hobby Lobby case, Pence said Indiana needs its own version of the federal law to "ensure that religious liberty is fully protected under Indiana law."

Indiana became the 20th state to enact such a law, although the laws are not all the same.

While Pence compares Indiana's law to the one Illinois created in 1998, Indiana's protections cover businesses, not just people who believe their religious rights have been infringed. Indiana's law also allows a claim to be made when two private parties are involved, not just the government, according to the fact-checking website PolitiFact.com.

And while neither Indiana's nor Illinois' law mentions sexual orientation, Indiana's was passed after courts began striking down gay marriage bans. Sponsors and lobbyists for Indiana's law have said it could protect Christian businesses from having to provide wedding services to gay couples.

Pence has said it does not legalize discrimination, but declined to say Sunday whether it should be legal to discriminate against gays and lesbians.

Email Maureen Groppe at mgroppe@gannett.com . Follow her on Twitter: @mgroppe.







