Hoosier ruckus

Why people are up in arms about Indiana’s new ‘religious freedom’ act and not other states’

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Courtesy of First Amendment Partnership

The uproar was immediate when Indiana Gov. Mike Pence signed into law the Indiana Religious Freedom Restoration Act on March 26. Since, governments and businesses have boycotted the state, bands and artists have cancelled tour dates, and Pence has had to publicly clarify the intent of the law.

But what exactly is the intent of the law? And why are people across the country so upset about Indiana’s version of a law that has a federal predecessor, and of which 19 other states have a version?

The answer is twofold: The Indiana law has language that those other state laws do not have; and some of those other states have laws that would prevent businesses from discriminating against gay, lesbian, bisexual and transgender citizens.

Despite this, many proponents of the new Indiana law say the act is simply a new iteration of a federal law signed in 1993. That’s not quite the case.

President Bill Clinton signed the Religious Freedom Restoration Act after being approved by a nearly unanimous House and Senate. The bill’s scope was entirely on the federal level (opening the door for states to enact their own versions of the law in the future). The law helps the federal government navigate First Amendment rights to freedom of religion around existing federal laws — for instance, illegal substances like peyote are allowed for use in certain Native American religious activities under the law as the U.S. government is unable to prove it has a necessary interest or duty in preventing that action (and preventing the use of peyote amongst that population would be a violation of First Amendment rights).

Court cases soon after proved that the federal act couldn’t be applied to states, and so since the passage of that legislation, 20 other states have passed localized Religious Freedom Restoration Acts, with Indiana the latest and a bill currently on Arkansas Gov. Asa Hutchinson’s desk.

These state laws, similar to the federal version, focused on “prohibiting laws respecting the establishment of religion,” and the expression of that religion, as the Indiana law states.

However, here’s the main difference. The Indiana law differs from the federal and other state statutes in that it provides “religious protection,” not only to individuals and religious organizations, but to “a partnership, a limited liability company, a corporation, a company … or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.”

Remove the jargon and you’ll find that the Indiana law may give businesses and for-profit companies the legal ability to discriminate based on sexual and gender identities.

Furthermore, the law states that for-profit companies can claim their “exercise of religion has been substantially burdened,” as a legal defense “regardless of whether the state or any other governmental entity is a party to the proceeding.” If the state is not a party in the lawsuit, the law says the state has an “unconditional right to intervene in order to respond to the person’s invocation of this chapter.”

If that seems like a lot of grayness, that’s because it is. And that’s sort of where the furor over the law comes from and why Gov. Pence says he’s going to work to clarify some of the verbiage in the act. As is, law experts in Indiana and nationwide are split on the legal standing of the law. It might allow businesses to not serve people based on their sexual or gender identity, and it may protect employers from discriminatory hiring practices.

This is especially of concern because Indiana is one of several states that also does not have a state law that prevents discrimination against LGBT citizens.

In effect, an anti-discriminatory law would negate the Religious Freedom Restoration Act (at least for for-profit entities in a legal sense) as they do in states with both mandates like Connecticut, Rhode Island, Illinois and New Mexico. It’s also worth noting that about a dozen Indiana cities, including Indianapolis, have anti-discriminatory laws that would appear to trump the state religious freedom law, though there isn’t the precedent yet in the state to determine if that’s how a case would play out.

The timing of the law is also of some interest. In October 2014, a U.S. District Court in Indiana ruled that same-sex marriage is legal in the state, and the U.S. Supreme Court refused to hear an appeal. In response, opponents of the religious freedom act say that the bill was drummed up by an active conservative group to combat the court’s decision on same-sex marriage. Furthermore, the Indiana legislature is working on a bill to present to voters next year that would codify the statute that “only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana.”

Colorado is not outside this discussion, either. Though it is one of 21 states with anti-discrimination laws based on sexual identity (Wisconsin, New York and New Hampshire laws do not include transgender protections), a similar bill is currently in a Colorado House committee.

Colorado House Bill 1171, the “Colorado Freedom of Conscience Protection Act,” was introduced in January by Patrick Neville (R-Castle Rock), Tim Neville (R-Littleton) and Stephen Humphrey (R-Severance). The bill “specifies that no state action may burden a person’s exercise of religion,” “provides a claim or defense to a person whose exercise of religion is burdened by state action” and “specifies that nothing in the bill creates any rights by an employee against an employer unless the employer is a government employer.” Again, jargon aside, it’s open-ended about discrimination like the Indiana act. That said, it’s still early for that bill and a vote in the House Committee on State, Veterans and Military Affairs was postponed on March 9.

Meanwhile, 11 other states are considering similar religious protection legislation. For now, all eyes are on Indiana. The response from legislators there could affect how similar acts are crafted and enforced throughout the country.