Indiana’s Idea of “Freedom” Is Restrictive
Indiana’s new Religious Freedom Restoration Act, or RFRA, might actually do little as a law when it goes into effect July 1. It simply sets a standard by which cases involving religious objections will be judged. The law essentially states the government cannot intrude on a person’s religious liberty unless it can prove a compelling interest in imposing that burden and do so in the least restrictive way.
This leaves room for interpretation meaning the magnitude of the law will have to be assessed most likely in court on a case-by-case basis, probably in court. There are local nondiscrimination laws that specifically protect gays and lesbians in employment, housing, education and public accommodation, which include business transactions, but most of Indiana does not have these protections in place. The language of Indiana’s law is so broadly written that someone can sue even without their religious beliefs having actually been burdened simply by claiming that is ‘likely’ to happen.
Origin of the Law
The federal RFRA that Bill Clinton signed was enacted to protect religious minorities (see: native american tribes, etc.), and not to give religious majorities license to openly discriminate against those with which they disagree. That legislation had bi-partisan support in government and from both liberal and conservative advocacy groups. It was not, and still is not, controversial legislation. Since, other states have added or updated language and details as they saw fit.
Indiana’s law is substantially broader than the federal law. The federal RFRA can only be invoked against government action. SB 101 goes much further, inviting discrimination by allowing religious beliefs to be raised as a defense in lawsuits and administrative proceedings brought by workers, tenants and customers who have suffered discrimination. In addition, SB 101 makes it easier to claim a burden on religious freedom than the federal RFRA by defining the ‘exercise of religion’ as ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’
Recently, there has been a rash of states that have attempted to use the federal RFRA as well as the SCOTUS Hobby Lobby decision as a vehicle to turn back the progress made on civil rights for lgbtq americans. This comes as marriage equality has expanded to a majority of states, and with the Supreme Court seemingly looking to rule in its favor. Those opposed to lgbtq equality have decided on RFRA as their new strategy to protect their right to not serve LGBTQ.
There are over 20 states with Religious Freedom Restoration Acts: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Virginia. Of those, Connecticut, Illinois, New Mexico and Rhode Island are the only states that have nondiscrimination laws protecting LGBTQ citizens. 11 of the 20 (Arizona, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Pennsylvania, South Carolina and Texas) have cities or towns with nondiscrimination ordinances that include either sexual orientation and/or gender identity protections.
Some have pointed to the neighboring state of Illinois and others, pointing to their version of RFRA which then State Senator Barack Obama signed; however, Illinois has robust nondiscrimination clauses in its state Human Rights Act that specifically protect LGBT people. Indiana does not. This matters because those seeking to discriminate in Indiana may claim that the lack of a statewide law barring sexual orientation and gender identity discrimination means that there is no compelling state interest in enforcing local ordinances providing such protections. Opponents of the law asked that wording be added to the Indiana RFRA that would keep the 12 Indiana municipalities that DO have anti-discrimination laws protecting lgbtq hoosiers in tact. Republicans refused. An official amendment to this effect was also voted down.
Why Was This Legislation The First Priority for this Legislative Session?
Governor Pence himself admits there are no current examples of existing issues in Indiana this legislation is meant to address. It seems Republicans and their supporters were using their positions of power and influence to prevent further steps towards equality for LGBT Hoosiers.
Pence said that the law isn’t intended to allow discrimination against LGBT people. Unfortunately, amendments designed to make that explicit were repeatedly rejected during the legislative process. This language is all that is necessary: ‘This chapter does not establish or eliminate a defense to a claim under any federal, state or local law protecting civil rights or preventing discrimination.’ Furthermore, the Indiana government should include LGBTQ people within Indiana’s protected class of citizens.