Indiana Gov. Mike Pence is probably feeling blindsided right about now. A strong conservative, he did what many other states have done and signed a “Religious Freedom Restoration Act,” which emphasizes that the government can’t stop people from exercising their religious consciences. Then all of a sudden there was an eruption: national news stories, talk of boycotts, big corporations halting plans for expanding in Indiana.
We’ll get to the broader societal context that has made this such a big issue in a bit, but first it would be helpful to clarify a couple of questions about the Indiana law.
1. Is this the same law as the federal RFRA and versions in other states?
The answer is no, for a couple of reasons. First, there’s the intent. When the federal RFRA was passed in 1993, no one was talking about gay marriage, and it wasn’t about how private individuals deal with each other. The law was spurred most directly by a case called Employment Division v. Smith, which concerned whether two Native American workers could get unemployment insurance after they had been fired from their jobs for taking peyote in a religious ritual. It was that kind of private religious conduct that the debate revolved around at the time.
But more importantly, the Indiana law is different from other laws in its specific provisions. It not only explicitly applies the law to for-profit businesses, it also states that individual can assert their religious beliefs “as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” [emphasis added] The federal law, and most of the state laws, only concern instances where the government is forcing a person to do something or not do something; the Indiana law directly covers disputes between individuals.
Weirdly, Governor Pence thinks he can just deny that the law he signed does anything of the sort, despite this clear language. “In fact, it doesn’t even apply to disputes between private individuals, unless government action is involved,” he said yesterday on ABC’s This Week. That’s completely false.
2. Does this mean discrimination against gay people is now legal in Indiana?
Maybe. Indiana law on discrimination creates certain protected classes. You can’t discriminate against someone because of their race, their religion, their gender, and so on. But sexual orientation isn’t on that list, so it’s already legal to discriminate against gay people in much of the state. Some cities and counties in the state have passed their own local anti-discrimination laws, and it’s really these that are where the question comes in. Whether this law overrules them comes down to how courts would interpret the legislation’s language.
What the law says is that if the state is going to burden your exercise of religion — e.g. make you serve people who are gay — it needs to have a “compelling governmental interest.” As Indiana law stands now, preventing discrimination on things like race and gender is a compelling interest, which is why you can’t say “Only whites allowed” in your restaurant. It’s a good time for a brief detour before we look at how that “compelling interest” will now play out:
3. Does this law mean I could justify almost anything based on my sincere religious beliefs?
No. If I murdered my child because the Bible says that rebellious children should be stoned to death, the courts would say that even if it was my sincere religious belief, the state has a compelling interest in stopping murders, so that trumps my religious freedom argument. The question is what does and doesn’t fall into that compelling interest category. So we return to discrimination against gay people.
The language of the Indiana statute is vague, which is what allows Governor Pence to insist that the talk of discrimination is a “red herring” and this really has nothing to with discrimination at all. It isn’t a laundry list that says it’s okay for a florist to refuse to make flowers for a gay wedding, but not okay for a restaurant owner to refuse service to a gay couple. (There’s no reference to sexual orientation in the law at all.) So who decides whether the state of Indiana has a compelling interest in stopping discrimination against gay people? The courts. I asked Sam Bagenstos, a University of Michigan law professor who just successfully argued a case before the Supreme Court on discrimination against a pregnant UPS worker, what would happen in court when this new state law came up against a local ordinance prohibiting discrimination against gay people. First, you would need to cite some law prohibiting that kind of discrimination; let’s say you were in Indianapolis (which has such a law), you were refused service in a restaurant and you sue. According to Bagenstos, it could go either way:
So the court would have to decide whether eliminating sexual orientation discrimination was a compelling state interest. The court might say that eliminating sexual orientation discrimination is so important that of course it’s a compelling state interest, independent of any state enactments. The court might say that the enactment of the Indianapolis/Marion County ordinance shows that eradicating sexual orientation discrimination is a compelling state interest. The court might, instead, say that the absence of a state law (as opposed to a local ordinance) making sexual orientation illegal shows that the eradication of sexual orientation discrimination is not a compelling state interest. Or the court could say that even if state law prohibited sexual orientation discrimination, eliminating that sort of discrimination would not be as important as eliminating race and sex discrimination and, unlike with race and sex, is not a compelling state interest. Those backers of the Indiana RFRA who are saying that the law protects business owners from being forced to serve same-sex weddings are clearly betting that the Indiana courts will find no compelling state interest (or no least-restrictive-means) here. I think they are making a quite reasonable prediction of how this law will be interpreted by the courts.
So we don’t know with complete certainty whether this law overrules local anti-discrimination ordinances and permits discrimination by business owners; it might have to eventually be decided by the Indiana Supreme Court. Which leads to:
4. Could the Indiana legislature make this clearer?
They could. If they really don’t want to allow discrimination against gay people, they could amend the state’s anti-discrimination law to add sexual orientation to the list of factors like race, religion, and sex that create a “protected class,” basically a group you can’t legally discriminate against. When George Stephanopoulos asked Pence whether he would do that, Pence replied, “I will not push for that. That’s a — that’s not on my agenda and that’s not been the — that’s not been an objective of the people of the state of Indiana. And it doesn’t have anything to do with this law.”
Pence did say this, however: “George, look, we’re not going to change the law, okay? But if the general assembly in Indiana sends me a bill that adds a section that reiterates and amplifies and clarifies what the law really is and what it has been for the last 20 years, then I’m open to that.” The law isn’t going to change, but he’s open to “clarifying” it. It’s theoretically possible, since Pence says the law has nothing to do with allowing people to discriminate against gay people, that they could add a passage saying the law doesn’t allow discrimination against gay people. The chances of Pence and the Indiana legislature doing that seem remote at best. So if Pence is open to clarifying the law, he ought to explain exactly what sort of clarification he means.
5. Are there any other reasons this became such a big deal?
The key factor that took this story from one in which liberal activists were angry about a piece of state legislation to a national story is probably the reaction of big corporations, which makes it an economic story as well as a social and legal one. Salesforce announced it will be scaling back its presence in the state. Angie’s List, which is based in Indianapolis, announced that it is putting plans for a $40 million expansion on hold. The CEO of Yelp wrote an open letter saying it is going to expand only in states that don’t have laws like Indiana’s. Drug behemoth Eli Lilly, which employs 11,000 Hoosiers, released a statement saying “Discriminatory legislation is bad for Indiana and for business.” And Apple CEO Tim Cook has an op-ed in today’s Post condemning the law.
Big corporations have for some time been relatively quiet supporters of gay rights — for years, most Fortune 500 companies have offered some kind of domestic partner benefits to same-sex couples. But there’s a transition underway, in which those internal policies are turning into public activism. Some companies are willing to speak out not just on policy issues like tax rates and employment law, but on things like discrimination that affect them too. After all, if you run an Indiana company, you want to be able to attract the best workers, and a law like this can make that much more difficult.
All of which means that it isn’t going to fly for a politician like Pence to say that a law like this one has nothing to do with how gay people are treated, and we should all just move along. The movement on the right to expand the way people and businesses can use “religious freedom” against other individuals is running up against the wider societal movement in favor of equal rights for gay people. The very fact that an conservative politician from a conservative state like Pence feels the need to deny that this law is supposed to do what everyone understands that it’s supposed to do tells you a lot about which side is going to win that conflict in the long run.