Indiana Amends Controversial Religious Freedom Law

Indiana Governor Mike Pence sought to quiet a week-long firestorm by signing a revised version of the state’s religious freedom law.  Seeking to clear up what he called a “great misunderstanding,” Gov. Pence approved an amended version of the free exercise law that prohibits the use of religious freedom to discriminate against anyone, including members of the gay community who expressed concern that Indiana’s law would allow for overt discrimination justified by religious beliefs.

Indiana Religious Freedom Act Emphasizes Free Exercise

US Flag and BibleIn its initial version, the Indiana Religious Freedom Restoration Act largely mimicked the federal Religious Freedom Restoration Act (RFRA) by placing a strict legal scrutiny on any law or government action that places a substantial burden on the free exercise of religion.  Indiana’s law, unlike the federal RFRA, also allows for individuals or businesses to use free exercise as a defense in a private civil lawsuit, giving private entities opportunity to use Indiana’s RFRA as a means of excusing behavior that may otherwise result in civil liability for harms caused. 

Although RFRA legislation like Indiana’s has historically been used as a means of protecting religious groups, usually minority religious groups, from government intervention into religious practice, controversy around Indiana’s legislation arose from concerns about how the law would be used in the current political and social debate surrounding treatment of members of the LBGT community.

Discriminatory Consequence of Indiana’s Free Exercise Law

On its face, Indiana’s religious free exercise law does not promote, encourage, or allow discrimination against any minority group, including homosexuals.  However, critics of the legislation were quick to point out that the law allowed significant opportunity for individuals or commercial businesses to discriminate against LGBT individuals under the guise of free exercise of religion.  As the gay-rights movement has gained support in both legislative and judicial arenas state-specific RFRAs like Indiana’s have become more popular, and arguably represent a shift in the purpose of RFRA legislation by making it less of a tool of defense used by minority religious groups to protect unorthodox practices and more of a tool of attack against the expansion of gay rights used by widespread religious organizations.

Exemplifying concerns of the gay-rights community, one Indiana business already made headlines under the new law by announcing it would refuse to cater to gay couples because doing so violated the company’s religious values, and others have similarly welcomed the RFRA as a way to avoid service to gay individuals or couples.  Historical value of RFRA laws notwithstanding, concern for their current purpose has risen because private actors, be they individuals or corporations, have turned to laws protecting the free exercise of religion in order to justify discriminatory behavior.  With the purpose and legitimacy of RFRA laws under a microscope, Indiana Gov. Pence and the legislature faced a wave of pointed criticism and protest from supporters of LGBT rights that ultimately forced the Governor to work with lawmakers on clarifying the limits of the state’s RFRA bill.

Indiana Amends RFRA Law to Prohibit Discrimination

In addition to widespread protests and criticism, Indiana’s legislature faced significant pressure from business leaders around the state and the country.  Apple CEO Tim Cook submitted an op-ed in the Washington Post that denounced the law, and Angie’s List, an Indianapolis-based company, put a $40 million expansion project on hold while the legislature reworked the religious free exercise law.  Under intense social and economic pressure, Gov. Pence announced this week that he signed into law an amended version of the bill that maintained protection for religious practices, but specifically prohibited discriminatory behavior.

The amended language in Indiana’s free exercise of religion states that the law does not, “Authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service."  Specifically protecting sexual orientation and gender identity is entirely new to Indiana law, and represents an expansion of civil rights for LGBT individuals unprecedented in the state’s history.

Some organizations, notably Angie’s List, expressed dissatisfaction with the changes by specifically pointing out that LGBT individuals can still be fired for their sexual orientation or gender identity because the amendment only applies to providers and the provision of services.  Indiana Democrats have joined to call for the law to be repealed in its entirety, and asked for better protections for the LGBT community, making it seem that the recent change to Indiana’s RFRA will not resolve the concerns of its opponents.  With other states across the country considering similar legislative action to protect the free exercise of religion, concerns over the new application of RFRA legislation as a potential tool to suppress LGBT civil rights will force states to act delicately to protect the desired religious freedom without passing laws that shelter discriminatory behavior.

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