The state of Indiana passed its own version of the Religious Freedom Restoration Act. The law has made headlines as being “controversial” and “anti-gay.” But what exactly does the bill mean?
Here are some answers to some questions you should ask about the law.
1. Can businesses discriminate against LGBT people in Indiana?
Yes — but that has nothing to do with this law. In Indiana (like a lot of states) there are no statewide protections against discrimination against LGBT persons. Businesses do not need a religious exemption to do this. There are executive orders that prohibit LGBT discrimination in public employment, and some municipalities have local ordinances. But as a state, Indiana has never added sexual orientation or gender identity to its list of protected groups.
2. What does the bill do?
The law passed by Indiana is nearly identical to the federal RFRA. Both acts give additional religious liberty protections so that the government cannot “substantially burden” a person’s exercise of religion except when it is something government must do (“compelling interest”) and there isn’t another way to accomplish the same goal in a way that doesn’t burden religious freedom.
The U.S. Supreme Court has already ruled that civil rights laws that prohibit discrimination meet this test. The government has a compelling interest to protect civil rights and requiring florists, photographers, and other businesses from discriminating against LGBT customers is the least restrictive means to this end.
3) Who is affected by the law?
Both the Indiana and federal RFRA acts are protections for persons from governmental actions. There is nothing in either the Indiana or federal RFRA acts that pertains to actions between private parties. RFRA could be used to stop the government from doing something; it cannot be used in cases that do not involve the government. By passing the law, the state is limiting its own power to act against its residents.
4) Is it constitutional?
The Indiana law is constitutional. There may be fears that it could be used to discriminate (though we haven’t seen that in the two decades of the federal RFRA), but even opponents know that the law is constitutional.
ACLU of Indiana, for example, strongly opposed the bill, but it recognized that the bill was constitutional. ACLU of Indiana executive director Jane Henegar said in a statement
While on its face the law is constitutional, only time will tell the full consequences of the state RFRA. It poses harm to our reputation as a welcoming state that is open to everyone, and it disrupts the balance that respects individuals’ freedom of religion without jeopardizing others’ freedom from discrimination.
ACLU of Indiana sees the new law as a response to last year’s court decision that legalized same-sex marriage in Indiana. It probably is. But that doesn’t mean that the bill is unconstitutional or that it affects LGBT rights.
The bill is being used by both sides of the same-sex marriage debate as a symbol. Opponents to same-sex marriage can claim to be protecting religious liberty; supporters can stand against the law as harming the “reputation” of the state. Possibly. Probably. And perhaps for good reason. But for people who care about the text and meaning of law itself, there is nothing that makes discrimination more likely with this law.
5) If the law is the same as the federal RFRA, then is it necessary?
The argument for passing a state RFRA is that the federal RFRA applies only to actions by the federal government. Actions by state governments (and municipalities) are not covered by the federal RFRA. By passing its own RFRA, a state is bringing its protections of religious exercise into line with federal law. So, if you think that RFRA is important, then a state law is necessary. If you don’t think this is important (or oppose the RFRA), then the law is unnecessary.
The Indiana bill is identical to the federal RFRA and does not affect discrimination against LGBT persons. It’s connection to LGBT rights is political and symbolic (for both sides). If you care about LGBT discrimination, focus on getting Indiana to add sexual orientation to its list of protected groups.