Governor Pence’s Empty Defense of Indiana “Religious Freedom” Law

  • March 31, 2015

Indiana Governor Mike Pence is receiving national backlash for signing a so-called “religious freedom” law that is causing major corporations to rethink their activities in his state.  The Governor claims there is a “tremendous amount of misinformation and misunderstanding” about the law, which many are calling a license to discriminate. Yet he has repeatedly refused to answer the simple question: does the law legalize discrimination?  He likely won’t, because the honest answer is “yes.”

Michael Pence, Governor of Indiana

Michael Pence, Governor of Indiana

Civil rights organizations do not stand alone in their strong opposition to this law.  In the 5 days since Governor Pence signed Indiana Senate Bill 101 into law, businesses, sports leagues, and local and state governments have voiced their deep concern about the law and threatened action in response.

Two major businesses have already restricted their Indiana operations.   Salesforce.com announced that it will “dramatically reduce [its] investment” in Indiana, will cancel programs that would require its customers to travel to Indiana, and may even help its employees move out of state.  Angie’s List halted plans for a $40 million expansion in Indianapolis.

The governor of Connecticut, as well as mayors of San Francisco and Seattle recently announced plans to bar publicly-funded travel to Indiana.  Even Indianapolis Mayor Ballard sharply criticized the law. And other major businesses and groups are also expressing concern.  Apple Chief Executive Tim Cook expressed deep disappointment with the new law, and the Indianapolis-based NCAA said the law could lead it to move events outside of the state.

The NBA, WNBA, and NFL also voiced concern.   Just yesterday, CEOs of nine major corporations, including Eli Lilly and Co., Roche Diagnostics, and Indiana University Health, hand delivered a letter to Governor Pence, the Senate President and the Speaker of House stating that they are they are "deeply concerned about the impact [the law] is having on our employees and on the reputation of our state …" and urging them “… to take immediate action to ensure that the Religious Freedom Restoration Act will not sanction or encourage discrimination against any residents or visitors to our state by anyone."

In 2014, the Arizona legislature passed a similar “religious freedom” law.   But under pressure from the civil rights community and businesses such as American Airlines, Google and the NFL, Governor Jan Brewer wisely vetoed the ill-advised legislation.

Governor Pence, however, continues to defend the law and argues it is just like the federal Religious Freedom Act (“RFRA”) and other similar state laws that have been on the books for years.  It’s not.

Although the new Indiana law never mentions sexual orientation or discrimination, it effectively allows all Indiana businesses, except perhaps large, public corporations, the right to discriminate against the LGBT community and others under the cloak of “religious freedom.”  The law does so by providing them with a powerful and virtually insurmountable religious-based defense to any state or local civil or criminal law.

In contrast, the federal RFRA only applies when an actual government entity “substantially burdens” religious exercise and is a party to a subsequent legal proceeding.  Furthermore, prior to the U.S. Supreme Court’s deeply troubling Hobby Lobby decision, RFRA was understood as only providing protections to individuals and religious institutions – and not for-profit, closed corporations.

So what does this mean in practical terms?  For example, let’s say that a gay couple goes to tuxedo rental store to try on and reserve garments for their wedding.  Based on the new “religious freedom” law, the owner refuses service to the couple, claiming that serving them would “substantially” burden his or her religious beliefs.  At this point, the couple might seek a legal remedy.   Of course, lawsuits are prohibitively expensive and take years to resolve, so most denials of service will go unchallenged.

But even if the couple chooses to bring a lawsuit under Indiana law, they would have an uphill fight to meet the relevant legal standard  “strict scrutiny.”   Litigants who must prove this standard usually lose.  Because federal and Indiana state law do not provide anti-discrimination protections based on sexual orientation and gender identity,  the LGBT community is the most vulnerable to the “religious freedom” law.   But the law also could be raised as a defense to legal actions brought by couples who are denied service because of their religion, ethnicity or national origin.

During the civil rights movement, efforts by businesses to cloak discrimination against African Americans in the guise of “religious freedom” were ultimately defeated because our nation’s true religious freedom protections were never intended to be used as a sword to harm others.  But the new Indiana law does just that by allowing for-profit businesses to use religion as a vehicle to discriminate in the marketplace.   Undoubtedly, as long as it remains on the books, this law will further damage Indiana’s reputation and economy.

With a month left in its 2015 legislative session, the Governor would be wise to push for a repeal of this odious law.

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