Indiana just passed its own version of a federal law called the Religious Freedom Restoration Act, due to take effect July 1, making it one of nearly 20 states (and the U.S. Congress) to have enacted such a bill. But while other RFRA bills range from the righteous to the innocuous, Indiana's is pernicious and scary—and anyone who tells you it's exactly the same is lying to you.
Although the law seems beneficial on its face—it's aimed at preventing discrimination, at least of the religious variety—the way it's worded potentially gives private companies a legal way to refuse to do business with LGBT people.
The state has already faced tremendous national backlash—including condemnation and potential boycotts by major corporations including Apple, Yelp, and Salesforce—on the grounds that the new law will "legitimize discrimination" against Indiana's LGBT residents.
Indiana's Lunatic Anti-Gay "Religious Freedom" Law
Even though the law itself doesn't mention sexual orientation, the people pushing the RFRA in Indiana have made their intentions quite explicit. In a blog post celebrating the bill's passage, "pro-family, pro-church" lobbying group Advance America wrote:
Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection!
But the law's superficial similarities to other states' versions of the RFRA give its supporters plausible deniability when confronted with accusations of bigotry. Hell, Barack Obama signed the same bill in Illinois when he was a state senator!
This is a claim frequently repeated by supporters of the Indiana law, including Gov. Mike Pence, who claimed on This Week that, "Then state-Sen. Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state senate of Illinois. The very same language."
Why It's Not the Same as the Federal or the Illinois Religious Freedom Restoration Acts
Not...quite. While Obama did vote for Illinois's Religious Freedom Restoration Act, which passed 56-0 back in 1998, the language in the bill was not, in fact, "the very same" as Indiana's. And neither was the political climate at the time.
Indiana's RFRA looks like the federal version "only if you're using a funhouse mirror," Sen. Chuck Schumer, (D-N.Y.) said Tuesday. The Illinois law matches the one Clinton signed, which doesn't share Indiana's provision about businesses and does require the government to be a party.
These are the key differences between the two, including the context Pence is conveniently leaving out:
The Illinois law can only be invoked when the government is accused of infringing on someone's religious freedom.
The Constitution (at least theoretically) prevents governments from passing laws that stifle freedom of religion, but there have been cases where a government action incidentally harms a particular religious group. The federal RFRA, and the Illinois version, were intended to protect against such government overreaches.
The Indiana version doesn't have the same narrow purpose; it applies "regardless of whether the state or any other governmental entity is a party to the proceeding."
Basically, people (or businesses—we're about to get to that) can sue under the law whenever they feel anyone is interfering with their religious freedom.
The Indiana law can also be invoked by companies (excuse me, "corporate persons") that feel they're facing religious discrimination.
The Indiana RFRA was written after Hobby Lobby, the Supreme Court decision that treated corporations as people with their own right to religious freedom, and it enshrines the perspective that religious businesses don't have to do anything they don't "believe in" into law.
In Hobby Lobby, the issue was birth control coverage for employees. In Indiana, it comes down to the right to discriminate against LGBT people.
The federal law was written to protect Native Americans from religious discrimination. The Indiana law was written to sanction businesses that want to discriminate against gay men and women.
Illinois' RFRA was based on the federal RFRA, signed into law by Bill Clinton in 1993. Its original intent was to protect Native Americans from a federal law that banned smoking peyote, even as part of their religious practice. After the Supreme Court ruled in 1997 that the federal RFRA didn't apply to state governments, several states—including Illinois—passed their own versions of the law.
But Indiana hasn't suddenly developed a deep concern for native religions 20 years after the fact.
- Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
- A Christian business should not be punished for refusing to allow a man to use the women's restroom!
- A church should not be punished because they refuse to let the church be used for a homosexual wedding!
Examples like these weren't raised in Illinois in 1998, back when marriage equality was still just a pipe dream. And each one is made possible because Indiana, unlike the other 19 states that have passed versions of the RFRA, explicitly treats businesses as persons with religious freedom.
Illinois already has civil rights laws in place to protect gay and lesbian people from discrimination. Indiana doesn't.
"The main difference is that Illinois has a law that expressly prohibits discrimination based on a person's sexual orientation and gender identity, so any interpretation of RFRA would have to be interpreted in concert with this non-discrimination law," attorney Camilla Taylor of Lambda Legal told the Chicago Sun-Times.
"Indiana has no such non-discrimination law, and the proponents of this bill rejected any clarification or addition that would acknowledge the importance of prohibiting discrimination."
What's Next in Indiana
So, what happens now to Indiana and its LGBT residents? Is there any hope of fixing this fiasco and bringing the bill in line with others' states approaches to religious freedom?
It would have been nice if the provision to include businesses had never made it into the bill, and state Democrats proposed an amendment to that effect. Unfortunately, it was shot down by the Republican majority. At this point, it doesn't seem to be going anywhere. Corporations are people, my friend.
The one remaining solution, championed by the Indianapolis Star in a front page editorial Tuesday, is to expand state civil rights laws to cover discrimination based on sexual orientation, something several other states with versions of the RFRA have already done.
In the face of a nationwide backlash that included some major corporations boycotting Indiana, Gov. Pence said Tuesday that he'd like to see a "fix" for the law by the end of the week, "making it clear that this law does not give businesses a right to deny services to anyone."
"We want to make it clear that Indiana is open for business," he said.
But it's not exactly clear what that fix would look like, because Pence also reiterated what he said on This Week: He does not support adding protections for sexual orientation and gender identity to state civil rights laws.
"It's not on my agenda," he said Tuesday.
It sounds as if the most likely scenario is a change that does lip service to nondiscrimination in an effort to erase what Pence calls a "smear that's been leveled against the people of Indiana," but doesn't actually extend gays and lesbians the same protection they have in other states that have passed the RFRA.
"If you start shaving out exemptions in laws, next thing you know, you'll gut the law because everyone will want an exemption," said Arkansas State Senator Bart Hester, one of the bill's biggest proponents, according to the New York Times.
North Carolina's legislature is considering following suit.