In addition to the anticipated re-introduction of the Georgia RFRA that Chip mentions below, a state analog of the federal First Amendment Defense Act (FADA) has been introduced in Illinois. In addition, a bill has been introduced in Indiana that would combine statewide LGBT-rights protections with FADA-style language exempting certain religious objectors. The Campaign for American Principles, a new Super PAC led by Professor Robert George, has made the federal FADA a top priority. Meanwhile, the Family Research Council is urging the passage of state FADAs and offering model legislation. As a result, it seems likely that additional FADA bills will be introduced soon for consideration during 2016 state legislative sessions.
As for the federal and Illinois FADAs that have already been proposed, both provide that, notwithstanding any other provision of law, the [Federal Government/State] cannot impose penalties upon or withdraw tax exemptions from "any person" on the basis that the person "acts in accordance with a [sincerely held] religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage." (The modifier "sincerely held" does not appear in the Illinois bill.) In the Illinois FADA, "person" is defined to include any corporation, nonprofit or for-profit. The same was originally true of the federal FADA, but Senator Lee has since announced revisions that would exclude publicly traded for-profit corporations; federal government employees; for-profit federal contractors; and medical providers with respect to visitation, recognition of designated decisionmakers, and necessary medical care. The religious exemptions in the Indiana bill are both broader and narrower than those in the federal and Illinois bills. They are broader in that they apply to all religious beliefs about marriage (so, presumably, objections to interracial marriage, interfaith marriage, and re-marriage of divorced individuals, not just objections to same-sex marriage). They are narrower in that they extend to commercial entities only if those entities have fewer than 4 employees. As for Marty's question about whether the Indiana and Arizona experiences put a damper on these initiatives, I think the answer is "yes, but." On the one hand, the experiences in Indiana and Arizona (and I'd add Louisiana) indicate that standalone RFRAs or FADAs will face serious headwinds in 2016. On the other hand, opposition to the Obergefell decision will likely fuel the introduction of new RFRAs and FADAs, regardless of their prospects for ultimate passage. And perhaps in a state that does not yet have statewide LGBT rights protections, a political compromise to obtain those protections will include some RFRA or FADA-like provisions. - Jim Latest Version of the federal First Amendment Defense Act: http://www.lee.senate.gov/public/index.cfm/press-releases?ID=8e6fc9c9-730f-49a6-ad32-82e486f6e5bb Illinois Religious Freedom Defense Act: http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=88&GA=99&DocTypeId=SB&DocNum=2164&GAID=13&LegID=92003&SpecSess=&Session= Indiana LGBT Rights/FADA Bill: http://www.indianasenaterepublicans.com/clientuploads/Documents/2016%20Session/SB100_LS6175.pdf Campaign for American Principles on FADA: "[G]iven our First Amendment rights, FADA should not even have to exist, but in the current political environment – where everyone from bakers to religious schools are in the cross-hairs after the Obergefell decision [–] FADA is must pass legislation.... This important piece of legislation would protect the First Amendment religious conscience rights of those American who believe that marriage is between one man and one woman, without impeding the rights of Americans who might disagree." https://campaignforamericanprinciples.com/first-amendment-defense-act/ Family Research Council on FADAs (which it calls GNDAs): "Like the First Amendment Defense Act at the federal level, states need to pass legislation now to protect individuals and entities from state discrimination on the basis of their beliefs in natural marriage." http://frc.org/gnda On Sun, Nov 29, 2015 at 6:41 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > As I understand it, many state legislatures meet only in the first few > months of the year, and have not been in session since the Obergefell > decision. I have heard from several reliable sources that Georgia > legislators will re-introduce a RFRA in January 2016. In spring 2015, it > appeared that Georgia would enact a RFRA, but the bill was tabled as a > result of a last minute motion to carve out state and local > non-discrimination laws (like the Indiana fix). The Bill's sponsor had said > all along that the RFRA would not protect acts of discrimination, but he > refused to accede to the carve out and pulled the Bill. > > On Sun, Nov 29, 2015 at 4:37 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> A while back we discussed new statutes in Utah and N. Carolina that >> attempt to accommodate clerks who don't wish to perform same-sex marriages. >> >> Apart from those, does anyone know of the post-Obergefell, post-Indiana >> state of play on state-law initiatives to craft religious accommodations to >> marriage laws--either for public officials such as clerks or for private >> parties such as bakers, etc.--or to enact further religious exemptions to >> state and local antidiscrimination laws? Did the Indiana and Arizona >> examples put a damper on such initiatives? >> >> Thanks >> >>
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