The Text of the Indiana Religious Freedom Restoration Act

[Offered as a public service, in the event that someone wants to read it, instead of misleading and inflammatory statements about it. My own analysis will follow in a future post.]


AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana: 


Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3. (a) The following definitions apply throughout this section: (1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, “demonstrates”means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

On Living Long, and Prospering


There are several different archetypes of virtue in the history of Western culture: the patriot, the rebel, the artist, the statesman, the woman of faith. Socrates seemed to invent in his own life and personality a new type, and while that type played a huge role in the thought of Plato and Aristotle, and was transmitted down to us in various forms, combined with various types, it was the Stoics which in a way embodied what was central in Socrates. Stoicism had a kind of oblique revival in the thought of Spinoza and Kant, but it could never quite compete with the other images and models in the larger culture. Ironically for us today, the Sixties made matters worse, and the notion that virtue is a sham and a self-betrayal, that what is truly necessary is to get in touch with your feelings, your appetites and passions, seemed to triumph over all else.

Gene Roddenberry wasn’t quite sure at first what he was doing with the Spock concept. At first he was supposed to merely be provocatively alien, and the notion of a cold character who was second in command was planned for a woman, with the intention I imagine of making a feminist statement. The grand pooh-bahs of television wouldn’t wear it, and so the notions were merged and we got the Spock that we know. Without quite knowing what they were doing, Star Trek re-invented Stoicism and presented it to the modern world in an accessible form. Philosophers sometimes say that the image of Spock misrepresents Stoicism, but on further reflection, I think Star Trek got it right in the first place. The forgotten Stoic Poseidonius knew that to achieve the ideal of dignified, self-possessed rationality, one would need to struggle with passions and appetites; in this he followed Plato rather than Zeno. Modern Stoics like Lawrence Becker have insisted that a proper Stoic does not exterminate his or her emotions, but cultivates them selectively, by the light of reason. Spock showed us both the struggle, and the proper role of dignified, rational sentiment, especially the sentiment of friendship. Remarkably, what Roddenberry and Nimoy created did justice to one of the central and yet most often forgotten ethical ideals our culture has produced, and showed that it was worthy of our affection and respect… and for some of us, emulation. From what I know of him, Nimoy had reason to understand from the inside the invisible battles and victories of those whose passions and appetites clamor to overtake their judgement, and he had reason to know what is was like to be an alien in a culture with very different values… and perhaps this was why he was able to make the character so compelling. Though Leonard Nimoy tried fitfully to break out of the role with which he became identified, in the end he acquiesced, and, I think, wisely. He is one of the few non-philosophers I know who gave much of his life to modeling for us The Life of Reason. We philosophers haven’t done a tenth as much in that regard. Leonard Nimoy will be missed, but the character he created is immortal. Mr. Quinto, you now have some pretty big shoes to fill: live long and prosper.

A Pretty Problem

Here’s the thing. We want individualism. We want as much freedom as possible for the individual without it limiting the freedom of other individuals. This is what we are about. Happily, having such a thing goes hand in hand with peace almost always. Unhappily, it also goes hand in hand with: ignorant or indifferent citizenship in the republic that makes it possible, an absence of political community unless politics becomes a branch of the entertainment industry, rampant consumerism, narcissism, and vast, ever-expanding inequalities of wealth. It means, increasingly, no public intellectuals worth a damn, no public, ultimately, no republic. We also want democracy. We want as much commitment to an intelligent, educated engagement in our political institutions as possible.This is what we are about. We want people to set their sights higher than their next smartphone or how many of their Tweets get re-Tweeted. We want people to care about the fate of democracy both here and abroad. We want to nurture and grow the institutions and values that create this kind of citizenry. Unhappily, that goes hand in hand with war. Just that: war. Only war can make people care about something larger than themselves, even when, perhaps especially when, it is a war for freedom itself. Only war makes people step out of their private lives long enough to care about the state of their community, and especially their political community. War makes political values literally a matter of life or death rather than a matter of attention or inattention, entertainedness or unentertainedness. Only war can make elites care enough about social cohesion to want to redistribute wealth in any serious way. Only war can make elites care that their fighting populace is healthy. Only war can make elites care that their working class is accommodated in any meaningful way. It’s not just that war and socialism go hand in hand: we cynics have always known what no progressive is ever quite able to see. It’s that public-spiritedness even on behalf of individualism itself requires death. (Don’t believe me? Before journalists started getting murdered in their offices, when was the last time you thought about, let along acted on, the Voltaire maxim about defending to the death the right to say things?) But idealistic war is a task that can have no end other than in enforced defeat by a superior power. With endless war comes empire, and eventually the curtailment of the very institutions that make  democracy possible. It means, ultimately, no republic.

Happy President’s Day.

Martin Luther King Day

Today is Martin Luther King Day. There are three ways that occur to me that one can think about Black History in America, and I would like to sell you on one of them. (This, by the way, is an internal discussion among Americans, so if you’re not one, never mind.) There is a fourth way (racism is awesome) that’s off the table. Also I use prototypes below; real people are composites; I get that.

The “conservative” view (for lack of a better word–I’m not trying to put everyone who thinks of themselves as conservative under this description) is to silently acknowledge that the history of slavery, Jim Crow, etc. is unfortunate, but represents an unessential deviation from the greatness of America as a land of freedom and opportunity. If this is your view, you will think of Jefferson as the author of the Declaration, not Jefferson as the slave owner. And you will tend to think that people who keep coming back to the racial dimension of American history are using it as a pretext to disparage this greatness, hoping to ultimately substitute it with something fundamentally opposed, not just to racism, but to individualism, classical liberalism, capitalism, opportunity, etc.

The “progressive” view (same caveats) is to see this racism as essential to American history. Phrases like “America is founded on white supremacy” are heard. This view may or may not be opposed to individualism, etc. etc. but it is devoid of any sense of historical or communal identification with America as a nation, either in the political or cultural sense. It adopts at best a stance of ironic superiority towards the idea of an American nation, an American heritage. It may do this because it thinks that the only alternative to its view is the “conservative” view… which it tends to think is a disingenuous form of the off-the-table fourth view.

The first and second views hope that someday we will learn to forget all about something, they just don’t agree on what. I want to propose a third view that is committed to remembering. If you are a “conservative” as per supra, then the Civil War is something awkward for you. The most extreme way of disposing of it is to simply demonize the North, Lincoln, etc. and I have on rare occasions seen precisely this. One can draw a line from Lincoln to FDR to a kind of modern federal leviathan, and condemn it. This view, unfortunately, quickly shades off into the fourth, off the table view. If you are a progressive, oddly enough, it is also a bit awkward for you because it means that something of mythic proportions that is central to American identity shows America, the nation and the state, getting something right in an inspiring way for once. If this makes you sufficiently uncomfortable because it threatens your sense of irony, you can try to draw attention away from the Emancipation Proclamation and towards Lincoln’s occasional view that freed slaves should be resettled in Africa; it will not be hard to do this sort of thing because rather few whites in the United States in the 19th century thought and wrote like 21st century campus activists.

The third view goes something like this: America’s greatness lies in its vision of individual freedom, equality under the law, and democratic institutions (not saying we invented these things, or perfected them, but that this is what we are about or aspire to be). But a mature culture and set of institutions committed to these things was not present from the beginning, and did not come into existence overnight. It was the product of a gradual, and often tragically painful, historical unfolding of a latent essence (see Hegel for more on these kinds of processes). The oppression of black slaves was a part of our inheritance from the *Old* World, from a pre-Revolutionary Old World, a World committed to differences of caste, hereditary privilege, feudalism, etc. and as much as Americans would like to believe that by crossing an ocean and fighting a Revolution, we started from scratch, we didn’t. Slavery and its aftermath was the legacy of these older ideas and practices. (This is starting to sound like the conservative view but it isn’t; bear with me).

Here’s the twist: this historical self-actualization occurs through the dialectic of white oppression, black struggle, white acknowledgement and incorporation of black claims, etc. Here’s a small example: in the US, state governments may not violate an individual’s freedom of speech. This is not because the US Constitution says so in the First Amendment, but because the Fourteenth Amendment, one of the Reconstruction Amendments, protects individuals from acts by states which the Bill of Rights prohibits the federal government from committing. Think about this: if there had never been a Civil War, there would be no freedom of speech at the state level. Need I be more excruciatingly clear? YOU OWE YOUR FREEDOM OF EXPRESSION TO AFRICAN-AMERICANS’ STRUGGLE TO BE FREE. I have long maintained that the “libertarian” or radical individualist vision of American politics is primarily owed, not to the Revolutionary era and its ideas, but to the Civil War. Because nothing more starkly educates you about the meaning of individual freedom than slavery does.

[My Nietzschean side cannot resist the following observation: Revolutionary notions of freedom spring, ultimately, from our pagan side, and are perfectly compatible with severe notions of social hierarchy, because they are ultimately rooted in aristocratic protest against tyranny, against the experience of a first among equals who gets too full of himself and dares to disregard the prerogatives of his aristocratic peers. Civil War notions of freedom, by contrast, are ultimately Judeo-Christian (unsurprising: look at the role of religion in the abolitionist community) and harken, ultimately, to the saga of the Exodus. America, like all of the West, is an attempt to synthesize these opposites. And my Hegelian side cannot resist going beyond where Nietzsche leaves it.]

To write slavery, the Civil War, Jim Crow and the Civil Rights Era out of American history is to blind oneself to our essence, to the tragically painful but inspiring way that this historical process has unfolded, and how essential the struggle for black freedom is to it all. But ultimately the only way that Americans can experience a sense of community, heritage and historical significance is if we embrace this history as our own. Only in this way can we transcend alienation, irony, defensiveness, resentment that is the legacy of the boatload of horror that crossed the Atlantic with us. To do this is not to disingenuously regard “color-neutrality” as starting point and then resent anyone who deviates from it by speaking up about work not yet accomplished. It is to see color-neutrality as an aspiration that defines us as a nation, against the backdrop of a history of conflict from which we have learned and achieved many things happier nations never have the privilege to know.

Justice Scalia once said “there is only the American race” and he caught a lot of flack for that from people who misunderstood what he was, perhaps inarticulately, trying to express. The aspiration that defines this community is a community in which whites and blacks together see the nation and its struggles as their own, not in which we are “color-blind” and not in which we divide into separate, racially defined forms of resentment and defensiveness, but a nation in which we are all black and all white all together.

That is a creed. And every creed has its prophets. Scripture teaches not that prophets are perfect human beings, but that they are the voice of something essential that we do not want to hear, whose words subsequently define the community which we are, and thus the person that each of us is. Martin Luther King was a prophet in that sense. I am a proud American and so I am proud to call him my own because he is one of the great ones of My People. I hope you are too.

Being and Time

“When the sunlight shines through the blackness of space it’s black, but I was in sunlight and I was able to look at this blackness! And what are you looking at? Call it the universe, but it’s the infinity of space and the infinity of time. I’m looking at something called space that had no end and at time that has no meaning. You can really focus on it because you’ve got this planet out there, this star called Earth, which itself is in this blackness, but it is lit up because the sunlight strikes on an object, strikes on something called Earth. And it’s not a hostile blackness. Maybe it’s not hostile because of the beauty of the Earth that sort of gives it light.” — an Apollo astronaut.

The Famine

I am a professor of philosophy. I am also a great admirer of some of the things that are thought of as postmodern so, caveat, this is not about that.

One of the things that bothers me about the world I live my professional life in is that philosophers teach the founding texts, not just of western civilization, which almost sounds pretentious to insist on, but of modernity, and yet there is a perception that philosophers are at best teachers of some nebulous thing called “critical thinking” and at worst Middle Earth cartography (charting their own fantasies). But the impact of the Enlightenment figures on our culture is huge, pervasive, and basically we own those guys. “It’s a pity that no one has ever inquired into the notion of political legitimacy resting on popular sovereignty,” says someone reading an article about Arab Spring. “It’s a pity that no one has ever tried to really explain to anyone how all knowledge rests on the evidence of the senses,” says a New Atheist.

Sidenote: when I teach Hegel, I teach him as primarily engaged in cultural politics and not one thing he discusses isn’t relevant to us, even down to his trenchant critique of neurobollocks (i.e., “phrenology”).

And because no one outside the profession knows that we promote, and may be the only ones who promote, historical awareness of the conceptual basis of our culture, the tendency is to think that science and politics are just rooted in common sense which requires no discussion, or horrid ideology which requires dismantling. The critics say “but why does it go without saying that ___?” The answer is a resounding silence. Who does this leave the initiative with, by the way?

Oftentimes our students’ first and only exposure to explicit thought about the natural of rationality, or freedom, will be in a required course called “Gender and Photography” or something. That class will be required. “Modern Philosophy: Descartes, Locke, Hume” or “Modern Political Thought: Hobbes, Locke and Rousseau” won’t be. And then when I look at the consequences, what I notice is that people who read, say, Andrew Sullivan as aggregator, are encountering shallow discussions of centuries old debates as if some blogger was the first to ask if there isn’t more to life than science… or not, etc. unaware that there was this thing called the Romantic Reaction in the 19th century… And I look at the students we’re churning out, and basically they either dismiss the humanities as a complete waste of time (they’re trying to learn how to program in “C” and have no time for “Gender and Photography”) or they think that what it is to think reflectively about their culture is to oppose it self-righteously based on some hazy impressions of what they’re opposing from classes about pop culture or something.

Everyone knows what Santayana said about being condemned to repeat history. But such repetitions need not be catastrophic. Sometimes they are just shallow chatter.

I’m absolutely staggered when I see people getting really agitated for or against ideas that are centuries old who show no awareness of this fact, people who are products of a system which itself shows no awareness of the fact that my discipline is (if nothing else) the custodian of that awareness. I’m not saying “when you criticize a farmer, don’t talk with your mouth full.” I’m just sad that I see so much intellectual starvation around me when a banquet has been laid, but no invitations sent.