INRFRA – How did we get here and what happens next?

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.

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.)

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.)

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.


About Matt Anderson

I am civil trial attorney in South Bend, Indiana and have practiced on both sides of insurance and personal injury law in Illinois and Indiana for the better part of ten years. I created this blog as a way for other Indiana civil litigation and trial attorneys to get meaningful updates on cases ad issues that affect their practice. (I'll admit that there is some self-interest involved since it's also a handy way to summarize and file my own research.)

3 responses to “INRFRA – How did we get here and what happens next?”

  1. wefijewoif says :

    Thank you for providing this summary of the facts of what happened leading up to this law.

    Do you think that repealing this law is necessary to address this issue, or perhaps would it be more appropriate for the Indiana legislature to pass a bill including the LGBT community as a protected class and pass an amendment saying that discrimination on a religious basis will not be allowed under the RFRA?


  2. pdgpa says :

    Looking forward to your exposition of today’s amendments. Do you have the full text?


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