Indiana’s Religious Freedom Restoration Act: Religious Freedom or A License to Discriminate?

April 2, 2015

indiana religious freedom demonstratorsOn Thursday, March 26, Indiana’s governor Mike Pence signed SB 101, the state’s version of the Religious Freedom Restoration Act (RFRA), into law. Several other states and the federal government have enacted similar statutes, but Indiana’s version is receiving a notable amount of backlash. In fact, organizations such as the N.C.A.A., Apple, Yelp, and Angie’s List, along with various entertainers and other state officials, have spoken out against the law, with some boycotting the state altogether. This leads to the question of why, when 20 states have similar legislation, this law in particular is drawing such dramatic outcry, where others have not.

The Indiana legislature and supporters of the law argue that religious freedom is at risk from governmental action, and that the bill is needed to protect from overreach, in part because the federal RFRA does not apply to states or local government actions. The Governor also mentioned that since enactment of the federal law, it has never been used to undermine civil rights law and the Indiana version would be the same. Opponents suggest that SB101 opens the door for businesses to discriminate against LGBT customers because the bill’s language is broader than similar laws. They take issue with provisions of the law stating that a person whose rights are “likely to be substantially burdened” can bring a claim under the law, not requiring proof of an actual burden, and the use of the law in suits between private parties. Additionally, in other states where RFRA laws have been passed, like Texas, the laws include language specifically addressing civil rights violations, where the Indiana law does not. Still other states, like Illinois, have other forms of LGBT anti-discrimination protection on the books; again, Indiana does not. Additionally, the social rhetoric around the law contributed to the perception of discriminatory intent. Parties that pushed for the law used the example of providing services for same-sex weddings by Christian businesses as a reason the law was necessary.

Governor Pence has maintained throughout these discussions that the purpose of the act was not to give a right to discriminate, but to ensure everyone’s rights are equally protected. He further stated that if he thought the bill legalized discrimination in any way, he would have vetoed the bill. He has since called on the legislature to amend the law, saying that although he does not agree, he now sees how the bill has been perceived this way. On Monday, Pence asked that by the end of the week legislation be presented to him that clarifies that the law is not meant to give a right to deny services to anyone. Preliminary reports on Wednesday morning show that Indiana Republican leaders had struck a deal with business leaders to offer limited protections against discrimination by offering an explanation of the law stating that it does not authorize refusal of service based on sexual orientation or gender identity. Any deal would have to be approved by Republican caucuses in both the House and Senate. This is a rapidly moving story, so keep an eye out for updates. Additionally, this week Arkansas passed a law similar to Indiana’s, and after the outcry in Indiana, Arkansas Governor Asa Hutchinson declined to sign the bill, asking the legislature to change the language to address these concerns, and would even consider doing so by executive order.