- Indiana Gov. Mike Pence on Thursday approved a clarification to the state's controversial religious freedom law that will bar businesses and individuals from using the law to refuse employment, housing, or service to people based on their sexual orientation or gender identity.
- But the clarification won't add sexual orientation and gender identity to separate civil rights laws that prohibit discrimination in the workplace, housing, and places that serve the general public, meaning it will remain legal to discriminate against LGBT people in much of the state without a religious objection.
- The change will also exempt churches and other nonprofit religious organizations.
- The religious freedom law was established to allow people to challenge laws and regulations that "substantially burden" their religious practices without a compelling government interest.
It's legal to deny service to gay and lesbian people in 29 states
The clarification comes after a week of a nationwide backlash from critics who said the measure could be used to discriminate against LGBT people, although legal experts doubt it would actually have this effect, based on decades of legal precedent from court battles involving similar religious freedom laws.
Celebrities and businesses, including George Takei, Apple, and Yelp, criticized Indiana over the measure, with some threatening to boycott the state.
Despite the clarification, Indiana — and most other states — still lack civil rights laws that would prohibit discrimination against LGBT people in the workplace, housing, and public accommodations (hotels, restaurants, and other places that serve the general public). In these states, it's not religious freedom laws that allow discrimination; it's the lack of civil rights laws.
As a result, in many states an employer can legally fire someone because he's gay, a landlord can legally evict someone because she's lesbian, and a hotel manager can legally deny service to someone who's transgender — without citing religious grounds.
Indiana in particular has no statewide nondiscrimination law for LGBT people, although some cities, including Indianapolis, have local measures.
Currently, 19 states ban discrimination based on sexual orientation and gender identity, while three additional states ban discrimination based on sexual orientation. Some other states protect public but not private employees from discrimination. Many municipalities have nondiscrimination laws that only apply within their local borders. And some companies prohibit discrimination in their own policies.
The protections sometimes vary from state to state. Massachusetts's protections for gender identity and Utah's protections for sexual orientation and gender identity don't apply to public accommodations. Some states, like Utah, also include exemptions for discrimination based on religious grounds.
LGBT advocates argue the Civil Rights Act of 1964 already protects LGBT workers from discrimination, but that interpretation of the federal law hasn't been proven in court.
What the religious freedom law still does
Indiana's Religious Freedom Restoration Act (RFRA), which takes effect on July 1, says government can't intrude on a person's religious rights unless it has a compelling government interest and is acting in the least intrusive way possible.
RFRAs have been around since President Bill Clinton approved a federal version of the law in 1993.
Traditionally, the laws have been used to protect religious minorities. The Indianapolis Star's Stephanie Wang reported a case in Minnesota in which a law would have required Amish buggies to use bright fluorescent signs to be more easily detectable on roads. A court agreed the government has a compelling interest to uphold public safety on the roads, but that it could do so in a manner that doesn't burden Amish religious adherence to a simple lifestyle. In the end, the fluorescent signs were replaced with silver reflective tape and kerosene lanterns.
"These are, frankly, plain, vanilla religious protections," Robin Wilson, a law professor at the University of Illinois, said.
The laws first came about after a 1990 Supreme Court decision in which the court ruled someone could be fired for using peyote, a hallucinogenic drug, during a religious Native American ceremony, Wilson said. Although the court ruled against the religious argument in that case, it suggested that governments could establish explicit protections that would exempt people from certain laws if they have a genuine religious objection. The ruling eventually convinced the federal government to pass its RFRA in 1993.
Following the enactment of the federal RFRA, the US Supreme Court ruled in 1997 that the federal law only applies religious protections in the context of other federal laws. The decision compelled states to pass their own measures, so the legal protections for religious rights apply to the local and state level as well.
Indiana's law, which goes into effect on July 1, goes further in one significant way than traditional RFRA laws. As South Texas College of Law professor Josh Blackman explained in a blog post, it's unclear — and varies from court to court — whether the federal RFRA can be cited as a defense in lawsuits in which the government isn't one of the parties involved. But Indiana's law explicitly states that a person can cite the state's RFRA in private lawsuits in which the government isn't a party. That means someone could cite Indiana's RFRA as a defense in a private lawsuit, instead of just legal disputes with governments.
How advocates and businesses are reacting
- American Civil Liberties Union: "Because of these changes, the harm of the law has been lessened, but there remain significant problems that must be addressed. With these amendments, the RFRA cannot be used as a defense in some kinds of discrimination cases. That’s a major improvement. But it still poses a risk that it can be used to deny rights to others, including in education, access to health care, and other aspects of people’s lives."
- Eric Miller, executive director of the conservative Advance America: "The Indiana General Assembly should not destroy in less than 36 hours the Religious Freedom Restoration Act that took over 65 days to go through the legislative process earlier this year.… The proposed change to Indiana’s Religious Freedom Restoration Act is not a 'fix' but a hammer to destroy religious freedom for Hoosiers around the state —and it was all done behind closed doors!"
- Bill Oesterle, CEO of Angie's List: "Our position is that this 'fix' is insufficient. There was no repeal of RFRA and no end to discrimination of homosexuals in Indiana. Employers in most of the state of Indiana can fire a person simply for being lesbian, gay, bisexual, transgender or questioning. That's just not right and that's the real issue here. Our employees deserve to live, work and travel with open accommodations in any part of the state."
- Katie Blair, campaign manager of Freedom Indiana: "Today, the harm has been lessened, but we have not reached the day when LGBT Hoosiers can be assured that they can live their lives with freedom from discrimination. It's long past time to enact a comprehensive nondiscrimination law, and we must continue to work to ensure, once and for all, that the RFRA cannot be used to discriminate against or hurt anyone."
- Marc Benioff, CEO of Salesforce: "The new Indiana legislation is an important 1st step. The damage has been fixed, and a door is open to the future."