A license to discriminate

On March 26th, 2015, Indiana Gov. Mike Pence (R) signed into law SB 101, the Religious Freedom Restoration Act (RFRA). In doing so, Indiana became the 20th state to have such a law on the books. In fact, there is already a federal RFRA, signed into law by President Bill Clinton in 1993. The passage of this law came about after the Supreme Court upheld (in Employment Division v. Smith) the state of Oregon's decision to deny unemployment benefits to two Native Americans after they were fired from their jobs for testing positive for peyote use, a substance commonly used in Native American religious ceremonies.

The widely criticized Court decision spurred Congress and the president to take bipartisan action to address this perceived disregard for religious freedom in our nation's laws - a remnant of a bygone era in which bipartisanship still actually occurred. However, the Supreme Court ruled that the law no longer applied to the states in 1997 (it had initially applied to both the federal government and the states). In response, states began passing their own RFRA's, loosely based on the federal one, bringing us to the passage of such a law in Indiana today.

The purpose of such laws, according to their proponents, is to ensure that the government does not "substantially burden" a person's free exercise of religion. Opponents of these laws, however, charge that they open the door to discrimination in the name of religious beliefs. For example, a business owner could ignore anti-discrimination laws and refuse service to a gay couple based on his/her personal convictions.

In this case, the opponents are correct. State-level RFRA's are a "license to discriminate," as the history of such laws has repeatedly demonstrated. Per the ACLU of Michigan (which adamantly opposed RFRA legislation put forth in our own state chambers last year), examples of dubious behavior under the guise of religious freedom include:

• A police officer in Oklahoma asserted a religious objection to his community policing duties at a mosque, claiming a "moral dilemma."
• Pharmacists in Arizona, Montana, and Wisconsin have used religious freedom as a defense for refusing to dispense daily birth control.
• A pastor who helped kidnap a child in Virginia from her legal guardian cited religious freedom as his legal defense. In New Mexico, a local religious leader cited the state RFRA when he appealed a conviction for sexually abusing two teenagers. A federal judge held that the federal RFRA prevented the Department of Labor from fully investigating possible child labor law violations because the individual under investigation said that his religious beliefs forbade him from discussing those matters with the government.
• In Michigan, a school guidance counselor refused to help gay students because of the counselor's religious faith.

Perhaps the most notable citation of religious freedom was made by a corporation, not an individual. In Burwell v. Hobby Lobby Stores, the Supreme Court ruled that Hobby Lobby and other "closely held corporations" could not be compelled to provide female employees with free contraceptives under the Affordable Care Act, as such a regulation was in violation of the federal RFRA.

In her dissent, Justice Ruth Bader Ginsberg identified the incredible breadth the Court's decision had granted corporations and individuals to ignore existing law and exert their own moral authority:

"The Court holds that Congress, in the Religious Freedom Restoration Act of 1993, dictated the extraordinary religion-based exemptions today's decision endorses. In the Court's view, RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners' religious faith - in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ."

She's correct. If this is the way RFRA's are to be interpreted today, then it seems we've come a long ways from the original intent to protect an individuals' right to practice religion however he or she saw fit, so long as it didn't harm anyone else, and have instead found exciting new ways to create rights for much larger entities, such as for-profit corporations.  It's unsurprising that many Senators responsible for the passage of the federal law in 1993 have since expressed regret and dismay with the current state of affairs. As such, these measures should be opposed in the state legislatures that are currently contemplating them, and overturned in the states in which they are already law.

As for how this bill came to be in Indiana, it's important to note the political climate and context within which it was passed. Indiana's same-sex marriage ban was overturned by the courts in October of 2014. As the ACLU of Indiana notes, "the timing of this legislation is all important to understanding its intent: the bill was introduced as a backlash reaction to achieving marriage equality for same-sex couples in Indiana." The passage of this bill can best be understood as a last, desperate act by a coalition of politicians and interest groups who are soundly losing their fight against marriage equality and the broader acceptance of the LGBT movement.

Even more damning is the manner in which this bill differs from the federal and state-level versions that have come before it. Specifically, the definition of a "person" that may cite the free exercise of religion is much broader, as it includes not just individuals or even "closely held corporations," but virtually any for-profit business. Furthermore, the bill allows businesses to exert this right as a defense against lawsuits brought forth by individuals, as opposed to just actions brought by the government. As Garret Epps of The Atlantic writes:

"So, let's review the evidence: by the Weekly Standard's definition, there's "nothing significant" about this law that differs from the federal one, and other state ones - except that it has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals. Of all the state "religious freedom" laws I have read, this new statue hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people."

It is with this difference in mind that a group of 30 legal scholars signed and sent a letter to Indiana's state legislators, containing the most sound arguments against the bill that I have yet found:

"In our expert opinion, the clear evidence suggests...that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state's ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer's, their landlord's, their local shopkeepers, or a police officer's private religious beliefs."

It is this ambiguity that allows for the bills proponents to maintain their integrity while giving the thumbs-up to state sanctioned discrimination. Alas, some of its supporters, such as State Senator Scott Schneider (R- Indianapolis) and other interest groups, gave the whole game away in the lead up to the passage of the bill:

"Conservative groups with deep ties to many Indiana churches are lobbying hard. One such group, Advance America, is making a fact sheet available to churches. 

"SB 568 [a dueling RFRA bill proposed by Sen. Schneider, containing identical language to SB 101, the bill that was signed into law by Gov. Pence] will help protect individuals, Christian businesses and churches from those supporting homosexual marriages," it says. "Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!" 

When asked if the pending legislation would afford such protections, Schneider said it would."

Gov. Pence recently took to the airwaves to defend the new law on ABC News. If his objective was to roll back such claims, he did himself few favors:

"Indiana Gov. Mike Pence (R) on Sunday insisted that people on the Internet had conspired to create a "misunderstanding" that a so-called "religious freedom" law was about denying services to LGBT people. But at the same time, he repeatedly refused to answer if it effectively gave Christians a legal defense for discriminating against same-sex couples. 

"I understand that there's been a tremendous amount of misinformation and misunderstanding around this bill, and I'm just determined - and I appreciate the time on your program - I'm just determined to clarify this," Pence told ABC's George Stephanopolous.  

"So this is a yes or no question," the ABC host noted. "Is Advance America right when they say a florist in Indiana can now refuse to serve a gay couple without fear of punishment?" 

Pence, however, said that the purpose of the bill that he signed was to "empower" religious people. And this was a pattern that would be repeated over the next 20 minutes: Stephanopolous asking if the bill allowed ant-LGBT discrimination, followed by Pence dodging the question."

The governor and his Republican allies have found themselves on the receiving end of a political and business backlash they clearly did not expect. It's evident that they're trying to have it both ways by tamping down on the charge that Indiana has just opened the floodgates to legalized discrimination, whilst maintaining their wink-and-a-nod to the social conservatives this legislation was very much designed to placate.

Spokespersons for businesses and organizations such as Yelp, the NCAA, the NBA and the Indiana Pacers, Salesforce, Angie's List, and Apple have all expressed dismay at the passage of the RFRA. Angie's List is going as far as to halt expansion of their company within Indianapolis. "We are putting the 'Ford Building Project' on hold until we fully understand the implications of the freedom restoration act on our employees, both current and future," said Angie's List CEO Bill Oesterle. Similarly, Salesforce CEO Marc Benioff stated that his company was "canceling all programs that would require our customers/employees to travel to Indiana to face discrimination."

Celebrities, musicians, and other politicians haven't held back either. Both Hillary Clinton and President Obama have spoken out against the law. George Takei is encouraging his large swath of Facebook followers  to boycott Indiana. And Miley Cyrus took to her Instagram to call the governor an "asshole."

While I doubt that Gov. Pence is particularly concerned about the musings of Ms. Cyrus, his actions as of late (such as insisting that the Indiana legislature "clarify" what the law actually does) would indicate that he is concerned about the less than receptive response from Indiana's business community. The Republican Party is currently at a crossroads, in which its traditional base of hardline Evangelicals finds itself at odds with increasingly gay-friendly but otherwise economically conservative business owners, especially within the tech sector. My money is on the side that has, well, all the money.

Same-sex marriage will be legal in all 50 states by this Summer, whether Republicans are ready for it or not. I'd suggest that the sooner Republicans accept it, the better it'll be for their party image, but I've never been one to interfere with a conservative circular firing squad.