Here is a link to the text of the amendments to the new and improved INRFRA.
I am not going to get into the damage done to the reputation of Indiana or the economic impact of the past week (unless you’re Memories Pizza).
More than anything, the whole ordeal was an exercise of rhetoric elevated above substance all while under a national microscope. Some failed to distinguish that there are RFRA’s that do not infringe on LGBT rights and that most do not when they are well written. Others, it seemed, failed to notice that relgious freedoms are not mutually exclusive of their effect on LGBT rights.
I want to thank those who have helped perpetuate a civil discussion on this blog and have contributed thoughtful comments and questions. Laws are not simple things. But if we don’t wrestle with their language and effects and make conclusions, we risk falling back on the rhetoric of those who understand them even less.
With that said, let’s discuss the so-called fix to INRFRA,
Indiana has its first law that mentions LGBT rights. Some out there might not consider this a good, but I would say the majority out there thinks this is a good thing. The law also adds the always needed exceptions from applying to criminal and civil rights laws, inlcuding those ordinances and laws that protect public accommodations for LGBT rights.
From our discussions, it seemed clear that the law risked infringing upon these rights in certain circumstances and I think this amendment effectively does what it purports to do, which is what, again, was proposed back in February and voted down.
While the language added to the amendments is commendable. It really means nothing at all until predicate laws protecting LGBT rights become more prominent in Indiana. Recall that very few cities and counties have such protections and that no statewide LGBT public accommodations protections exist. Remember also that all RFRA’s require predicate government action or laws of some kind. If there are no laws that protect LGBT rights, there is no religious objection to be made (if we continue to use the oft-used context of late).
So, in effect, those counties and cities that had no human rights laws or ordinances protecting LGBT rights (including Walkerton, home of Memories Pizza) can go on denying such public accommodations as they could before all of this started.
In the end, the State of Indiana still has few protections statewide for LGBT rights. While there is likely little to occur for the remainder of this session, it will be interesting to see if the dialogue shifts toward a state human rights law protecting LGBT rights.
If nothing else, the events of the past week have provided a cautionary tale to other states on how not to pass a RFRA law.
How did we get here?
Several people are wondering or trying to explain how this entire controversy began. Some cite blame to the opposing party, some cite ignorance or surprise. I will do my best to provide a history of what was known and unknown going into this.
- Before all of this began, Indiana had no civil rights legislation that protected sexual orientation. As a state, it still does not. Rather, certain local governments (counties and cities) have adopted human rights ordinances that bar discrimination in public accommodations based on sexual orientation. Such protections already existed for the more widely accepted protected classes (i.e. geneder, race, national origin, etc.). Cities that have such ordinances include Indianapolis, South Bend, Evansville, and Bloomington.
- In or about March 2014, there was indeed a bakery that refused to cater for a gay union ceremony, citing religious reasons. As one might expect, a bit of a media firestorm ensued.
- At around this same time, House Joint Resolution 3, which sought to write a ban on gay marriage into Indiana’s Constitution was authored and sponsored by the following people:
Authored by Rep. P Eric Turner.
Co-Authored by Rep. Timothy Wesco, Rep. Wes Culver, Rep. Rhonda Rhoads, Rep. Robert Heaton, Rep. Don Lehe, Rep. Matthew Lehman, Rep. Randall Frye.
Sponsored by Sen. Dennis Kruse.
- Also at this time, Attorney General Greg Zoeller was filing amicus briefs in several other jurisdictions in defense of anti-gay marriage laws, while preparing Indiana’s own unsuccessful bid to preserve its similar set of laws.
- What was not occurring at this time was any sort of cry for religious freedom that did not relate to LGBT rights. For example, the Amish population of Indiana, which is significant, had not raised any issues that I have found.
- In the Fall of 2014, the 7th Circuit deemed Indiana’s ban on gay marriage unconstitutional.
- SB101 was introduced on January 6, 2015.
- On February 3, 2015, approximately sixteen legal scholars sent a letter to Sen. Brent Steele outlining the justification to implement RFRA in Indiana.
- In response to whether INRFRA could be used to object to anti-discrimination laws on religious grounds, the letter reads:
We are confident that Indiana courts will likewise be inclined to resist such claims under the Indiana RFRA. Protecting Americans from discrimination is generally a compelling interest, and few claims to exemption from anti-discrimination laws are likely to succeed. (Feb. 5, 2015 Letter, p. 5.)
- In response to whether a religious objection could be asserted successfully against laws preventing discrimination based on sexual orientation, the answer was less committal:
But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption. (Id., p. 6.)
- On February 23, 2015, the Indiana senate voted down an amendment to SB 101 that would have made the law inapplicable to any Indiana civil rights law or “any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.”
- On Febraury 27, 2015, over 30 legal scholars sent a letter to Rep. Ed DeLaney that concluded in part:
In our expert opinion, the clear evidence suggests otherwise and unmistakably demonstrates 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. (Feb. 27, 215 letter, p. 7.)
- On March 26, 2015, Gov. Pence signed SB 101 into law, codified as Ind. Code § 34-13-9-1, et seq. The law’s authors are credited as follows:
Authored by Sen. Dennis Kruse, Sen. Scott Schneider, Sen. Brent Steele.
Co-Authored by Sen. Carlin Yoder, Sen. James Buck, Sen. Amanda Banks, Sen. Liz Brown, Sen. James Smith, Sen. James Tomes, Sen. Greg Walker, Sen. Brent Waltz, Sen. Mark Messmer, Sen. Jean Leising.
Sponsored by Rep. Timothy Wesco, Rep. Jud McMillin, Rep. Don Lehe, Rep. Milo Smith, Rep. Bruce Borders, Rep. Dale DeVon, Rep. Timothy Harman, Rep. Robert Heaton, Rep. Chris Judy, Rep. Eric Allan Koch, Rep. Robert Morris, Rep. Alan Morrison, Rep. Mike Speedy, Rep. Jeffrey Thompson, Rep. Thomas Washburne, Rep. Matthew Lehman, Rep. David Frizzell, Rep. Randall Frye, Rep. Richard Hamm, Rep. Curt Nisly, Rep. Woody Burton, Rep. Anthony Cook, Rep. Doug Miller, Rep. Jim Lucas, Rep. Rhonda Rhoads. (Names in bold were behind House Joint Resolution 3 above.)
- Micah Clark, who opposes gay marriage, was one of the individuals invited to attend Pence’s private signing of SB101 into law.
- Also in attendance were two other known anti-LGBT lobbyists, Curt Smith of the Indiana Family Institute and Eric Miller, Executive Director of Advance America.
What happens next?
It will be interesting to see how this plays out.
Democrats are now asking for the repeal of RFRA in addition to civil rights laws in order to show the nation, whose eyes are focused on Indiana until Arkansas takes the
target baton, that Indiana does not discriminate against anyone. Such steps may also ebb the fallout of businesses and individuals withdrawing their investments in the state.
As for Gov. Pence and the Republican base, it will be interesting to see if they now offer to use Sen. Lanane’s previously proposed amendment or whether some broad language as to the statute’s intent would suffice.
If Indiana winds up adopting a statewide civil rights law that prevents discrimination based on sexual oritentaition though, it will have to be considered one of the more significant political backfires (or poetic justice depending on your viewpoint) that my semi-young eyes have ever seen. Other than the obvious reasons, it will mean that the legislatators who proposed the anti-LGBT laws above would now have to recognize civil rights based on, at least, sexual orientation when so such requirements existed before in most of their home cities and/or counties.
Please feel free to cite other relevant facts in the Comments section below.