The Debate Over What Indiana’s Religious Freedom Act Is Really About

Opponents of Indiana’s new Religious Freedom Restoration Act believe that while the law explicitly says one thing, it is designed to do another.

Supporters say the measure is meant to do just what it sounds like: make sure the government doesn’t impinge on the religious liberty of Hoosiers. But many gay rights advocates, politicians and civil liberty organizations believe the law will aid discrimination against lesbians and gays in the Midwestern state—giving businesses, landlords or employers legal grounds to treat them differently based on a religious opposition to homosexuality.

When Gov. Mike Pence signed the bill into law on Saturday, Indiana joined 19 other states that have similar “RFRAs,” while Indiana is one of 31 states that does not have a state-level non-discrimination law that covers sexual orientation and gender identity.

“The boogeyman that wants to attack religious adherents has just not arrived in Indiana,” says Jennifer Drobac, a law professor at Indiana University who signed a letter from academics expressing concern about the bill. “This is all coming on the heels of the same-sex marriage debate.”

The law prohibits the government from infringing on a person’s sincerely held religious beliefs unless the government has a “compelling interest” and that infringement is the “least restrictive” means of protecting that interest. The language of the bill defines a “person” as not just an individual, but essentially any business or organization.

Many religious freedom laws are modeled on a 1993 federal law signed by former President Bill Clinton. Pence has explicitly likened Indiana’s new law to that measure. Back then, Democrats lauded the bill as righting wrongs done to Americans who had been forced to follow the letter of laws that contradicted their beliefs—like a man whose religion forbids autopsies being forced to undergo that procedure, or an American Indian who loses his job for taking part in a ritual that involves peyote.

Notre Dame law professor Richard Garnett, who supports the law, says Indiana’s measure has the same aim of protecting such people. In an op-ed in the South Bend Tribune, he gives the example of a Muslim prisoner who should be able to wear a beard, as his religion dictates, despite prison regulations against facial hair. Garnett was among the signatories of another letter from academics expressing support for the bill and arguing that Indiana’s Constitution “protects religious liberty to a considerable — but uncertain — degree.”

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Opponents of the bill point out that more than 20 years from the time Clinton signed the federal law, the political context has changed.

Some social conservatives have championed religious freedom bills as way to exempt businesses like bakeries or florists from providing services to same-sex couples who are winning the right to marry in places where that practice isn’t politically popular. Lawmakers in Indiana worked but failed to pass a constitutional amendment banning same-sex marriage in 2014, months before the state was forced through court rulings to start issuing marriage licenses to same-sex couples.

Advocates who oppose the law say it appears like a “Plan B.” Eunice Rho, counsel for the American Civil Liberties Union, says that amendments to the bill that would make it clear that it can’t be used to undermine civil rights laws were repeatedly offered. “The proponents of the legislation proclaimed, over and over again, that this can’t be used to discriminate, this is about religious freedom. So we said, ‘Great. We’re in agreement on that. Let’s put it in the bill,'” she says. “And all of those amendments were voted down.”

In addition to Indiana, lawmakers in more than a dozen other states have considered “religious freedom” bills in 2015. Sometimes such measures crop up alongside non-discrimination legislation that LGBT rights advocates continue to push in legislatures across the states. While federal law prohibits discrimination based on attributes like sex and race, there is no federal anti-discrimination law that protects people on the basis of sexual orientation or gender identity. The same is the case in 31 states, where there is no law prohibiting employers from firing someone or landlords from denying someone housing solely because they are gay or transgender.

In Michigan, the Christian Coalition’s Keith den Hollander recently testified against an LGBT non-discrimination bill and said it amounted to “religious persecution.” David Kallman, speaking on behalf of the socially conservative Michigan Family Forum, framed the stakes this way: “Why should that baker or photographer be forced against their religious beliefs and conscience to participate in [a same-sex wedding]? And if they refuse to because of their religious conscience, to be put out of business?”

Such opponents of non-discrimination laws sometimes seek “religious freedom” bills as a counter attack, giving that hypothetical business owner grounds to challenge non-discrimination laws and protections against being sued.

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While Indiana has no state-level LGBT non-discrimination measure, several cities including Indianapolis do. Those are the places where such laws could go head to head in court when the act takes effect on July 1. Legal experts say it’s unclear how the courts in Indiana would rule. “It does not say that members of religious minorities will be successful if they seek exemptions,” Garnett, the Notre Dame law professor, wrote, “only that they are entitled to a day in court.”

Jennifer Pizer, senior counsel at Lambda Legal, which advocates for LGBT rights, also expresses uncertainty about what precedents might be set in court. But, she says, regardless of what happens in the legal sphere, there is also a “social effect” that could lead to more discrimination.

“People’s conduct is shaped by their understanding of what is acceptable and what is not acceptable in terms of human interactions, what the social standards are,” she adds. “That bill now embodies a state policy that religion is a legitimate reason for turning away customers because of who they are.”

As Indiana has dealt with backlash from passing the new law—ranging from grassroots protests to announcements that companies would be taking their business elsewhere—North Carolina Gov. Pat McCrory said he wouldn’t be signing a similar bill. In Georgia, a committee meeting to consider a religious freedom act on Monday was canceled, for the time stalling a measure that already passed the state senate.

In Florida, a state that has passed a Religious Freedom Restoration Act, the legislature is considering a LGBT non-discrimination bill. A group working to pass the measure released a study in late March suggesting that having an environment that is potentially “hostile” to LGBT people was costing the state around $362 million per year. Several organizations and businesses have expressed dismay at Indiana’s new law, which may end up being costly for the Hoosier State. Conventions are relocating, businesses are putting expansions in the state on hold and even the NCAA has expressed skepticism about the political climate.

Some Indiana politicians are calling for the state’s civil rights law to be updated so that people are explicitly protected on the basis of sexual orientation. Pence has meanwhile said he’s open to legislation that will further clarify what the new religious freedom law can do. Rho, of the ACLU, says there are few limitations about which acts the law could be used to defend based on religious conviction—whether it’s firing a woman for using the pill or kicking a couple out of an apartment for cohabiting before marriage.

“I’m definitely worried about gays and lesbians, but I’m also worried about women who want to access birth control,” says Indiana University’s Drobac. “This is a stupid law … We need to repeal this law immediately.”

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