Why Indiana's Religious Freedom Law Is Even Worse Than You Thought

March 30th 2015

Dante Atkins

This past Thursday, the Republican Governor of Indiana, Mike Pence, signed the Religious Freedom Restoration Act (RFRA) into law. This controversial piece of legislation is widely theorized to permit individuals and businesses to be able to discriminate against gays and lesbians by refusing to provide services to them. For his part, Gov. Pence did not expect the bill to be so controversial and has been in full damage control mode in an effort to protect his state’s reputation, as well as his own political future. One of the key points of Pence’s defense of the law, and one of the reasons he claims that the bill has been mischaracterized, is that 19 other states, as well as the federal government, have laws on the books that are similar to the one Indiana just passed—and therefore, Indiana shouldn’t be singled out for doing the exact same thing other states have already done.

So is Gov. Pence right? And if so, why is Indiana such a focal point? The answer is: yes, Pence is technically correct, but the scope of the law and its timing make Indiana a special case.

Yes, the federal government and states have similar laws. But consider why they were enacted.

The federal government, in addition to at least 31 states, have religious practice protections similar to the RFRA—whether through legislation (in 19 states, as Pence says) or through court decisions granting similar relief. But context is key. The federal version of the RFRA was signed into law by President Clinton in 1993. The factors that prompted the drafting and implementation of the law had nothing to do with legitimization of discrimination against the LGBT community. Rather, the law was designed to grant more protections to practitioners of religion in situations where specific religious exercise ran afoul of federal statutes:

The background is a 1990 Supreme Court case. After years of decisions that accommodated religious practices, the court seemed to draw a line in a case involving Native Americans who were fired for illegally smoking peyote during a religious ceremony.

The court said it would be “courting anarchy” to allow individuals to claim a religious exemption from laws that were neutral and generally applied to the rest of the population. Scalia wrote the opinion for five other members of the court.

Congress responded three years later with the RFRA. It says that government may not pass a law that “substantially burdens a person’s exercise of religion,” and it requires courts to apply strict scrutiny: whether there is a “compelling” reason for the law and whether it is narrowly tailored to accomplish the goal.

In 1997, the Supreme Court ruled that the federal RFRA did not apply to state and local laws. This decision, combined with state court decisions about a variety of eclectic issues having nothing to do with gay rights—moose hunting and Amish buggies, for instance—led to the passage of the plethora of state-level RFRA legislation we see today. But nearly 20 years later, the context behind recent efforts to pass RFRA legislation is dramatically different.

Indiana's law clearly targets the LGBT community

Take, for instance, last year’s Supreme Court case of Sebelius v. Hobby Lobby. Hobby Lobby, a privately held corporation owned by a religious conservative family, wanted to exempt itself from the Affordable Care Act's requirement that businesses provide insurance plans that covered contraception with no co-pay. Their case centered around two questions: 1) whether the requirement to offer insurance plans constituted an undue imposition on religious freedom, thus violating the federal RFRA; and 2) whether corporations could be assumed to have religious beliefs. In a 5-4 decision, Hobby Lobby won on both counts. The decision was symptomatic of a transition in the perception of free exercise of religion as defined under the RFRA: what started out as a law designed to guarantee an individual’s ability to freely conduct religious observances has turned into an excuse for businesses to impose their own religious values on their employees.

In fact, fighting for the ability to deny services to the LGBT community has become a cause célèbre of the religious right. Last year’s Values Voters Summit, one of the more influential annual gatherings of religious conservative activists and politicians, prominently featured the story of an Oregon baker who refused to bake a wedding cake for a lesbian couple and was sued by the state. She ended up shuttering her business rather than accept the requirement to serve LGBT clientele. Earlier that year, then-Governor of Arizona Jan Brewer vetoed her state legislature’s version of the RFRA, which had an explicit purpose to allow businesses to deny services to LGBT clientele. The massive opposition to the Arizona bill from major corporations, sports organizations, and activist groups should have given Gov. Pence some insight into the backlash he would end up facing, but perhaps he simply wasn’t paying attention.

But it’s not just the context and timing of the laws that are producing the backlash against the Indiana legislation: the law also differs from the federal version in two important respects. First, the law is specifically written not just to apply to individuals, but also to closely held corporations. The Hobby Lobby decision may have made this superfluous, but the language about businesses seems to give away the intention of the bill. Secondly, unlike the federal version, the Indiana law allows the RFRA to be used as a defense in discrimination suits between private entities rather than in disputes between an individual and the government. Here’s what this means in practice: certain cities in Indiana, such as Indianapolis and South Bend, have anti-discrimination laws on the books that forbid denying services on the basis of sexual orientation. Under the Indiana version of the RFRA, an individual or business sued under those statutes now has the right to claim religious freedom as a legitimate avenue for defense.

So what’s the upshot? Yes, 19 states and the federal government do have legislation that’s similar to what Gov. Pence just signed. But his state’s bill has far more in common with the intentionally discriminatory effort that failed in Arizona than it does with the legislation President Clinton signed 22 years ago. If Pence really didn’t expect the backlash, the only explanation is that he simply wasn’t paying attention.