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Backfire and Backtracking: Update on Indiana’s Religious Discrimination Law

Backfire and Backtracking: Update on Indiana’s Religious Discrimination Law

Last updated on: April 8, 2015 at 10:06 pm by John Halstead

Backfire and Backtracking: Update on Indiana’s Religious Discrimination Law 2015-04-08T22:06:30-05:00 John Halstead

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Before Jon Stewart could even get around to mocking Indiana lawmakers for what has to be the least popular law of the year (so far), state legislators have introduced an amendment to Indiana’s Religious Freedom Restoration Act (RFRA). If you want to know more about Indiana’s RFRA, see my previous most on it. While on its face the law was relatively innocuous, former Indiana Supreme Court Justice explained that the law was “code for ‘we need to deny gay and lesbians the civil rights they are asserting.'” The recent amendment is in response to a national public outcry against the bill, which from celebrities, businesses, sports teams, national organizations, religious groups, and other state and municipal governments, pledging they would avoid traveling to or scheduling events in Indiana or investing in Indiana businesses.

Mike Pence: “Hoosier’s don’t believe in discrimination.”

The amendment (named “Conference Committee Report Digest for ESB 50”) provides that the RFRA does not authorize a person or corporation to “to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing” to any person “on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service”, nor does it create a defense in a civil lawsuit or criminal prosecution for discrimination on any of the previously mentioned grounds. Basically, it guts the law.

I don’t know if I’ve ever seen a more beautiful instance of the phenomenon known as a “backfire”. Ouch! That must hurt Indiana’s Republican supermajority. They hoped to send a message. The message was received and one was sent in return: “Take your bill and shove it!”

Of course, I expect to hear some Republicans saying the law was never meant to be discriminatory in the first place. But then I ask you, why was an earlier amendment (Amendment #5) to the law rejected, which explicitly provided that a “compelling government interest” would include “the protection of civil rights; or the prevention of discrimination”? This amendment would have prevented anyone from defending discriminatory behavior on the basis of “religious freedom”? The omission of this language from the final language of of the bill makes the intent of its authors crystal clear. But because they refused to include the language of the earlier amendment, the Republican legislature has now been forced to adopt language which is even more explicit about the limitations on the law’s ability to shield religiously-motivated discrimination.

But let’s be clear. While Indiana’s Religious Freedom Restoration Act will not be used as a tool for discrimination, unfortunately this does not mean that LGBTs are protected from discrimination in Indiana. It just means that businesses can no longer use the RFRA to defend themselves when the discriminate. The state of the law in Indiana is still pretty sad. According to IndyStar, only Marion County (which includes Indiana’s capital, Indianapolis) and 10 other Indiana communities (including the larger cities of Bloomington, Evansville, Fort Wayne and Michigan City) have local nondiscrimination ordinances that include sexual orientation. And even these ordinances are weak. For example, Monroe County’s Human Rights Ordinance concludes “In complaints of discrimination on the basis of sexual orientation or gender identity, the commission’s authority shall be limited to voluntary investigations and voluntary mediation.”

My hope is that the momentum of the state legislature’s reversal will carry into affirmative protections for LGBTs in Indiana.

religious discrimination

religious freedom

Religious Freedom Restoration Act

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