Indiana’s RFRA Really Is That Bad

Indiana’s RFRA Really Is That Bad

Lawmakers in Indiana have a real mess on there hands. Indiana’s new Religious Freedom Restoration Act has resulted in a cacophony of protests, not just from radical groups, but from companies like Anthem, American Airlines, Wells Fargo, Eli Lilly Levi’s and Walmart. Indiana’s governor and state legislators have been hard-pressed to respond to the criticisms, but they’ve been helped by hazy statements in the media that the Indiana law is essentially, more-or less, kinda the same as the Federal RFRA law and similar laws in the other nineteen states with their own RFRA’s.

It’s not true. Indiana’s law is unique, and uniquely dangerous. Indiana’s law makes it the only state in the country where individuals and corporations can refuse service to gays and lesbians (or others), because religious belief immunizes them from both civil and criminal penalties.

First, let’s dispense with the claims that Indiana’s law is the same as the Federal RFRA – which, apologists point out, was signed by no less a liberal icon than Bill Clinton. The Federal RFRA — 42 U.S. Code 2000bb, was specifically enacted to fix a problem arising from a holding by US Supreme Court that “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion”. It’s purpose, explicit in the statute itself, was to “provide a claim or defense to persons whose religious exercise is substantially burdened by government.” The law is also explicit that it applies in cases “against the government.”  (In Gonzales v. Centro Espirita Beneficent Uniao do Vegetal, (2006) for example, the US Supreme Court found that RFRA protected member’s of a church using a sacramental tea containing a controlled substance from prosecution under federal drug laws.)

In contrast, Indiana’s RFRA explicitly applies to disputes between private citizens. As Brian Bosma, Indiana’s Speaker of the House, and Senate Pro Tem David Long admitted on April 1, the law allows a business owner to place a “No Gays Allowed” sign in the front window. While the focus has been on the anti-LGBT effects of the law, the law would also allow discrimination against people who have been divorced, or women the shopkeep believes have had an abortion, to provide just two examples.

These concerns aren’t hypothetical. Kevin O’Connor, owner of Memories Pizzeria in Walkerton, Indiana, recently told a local news crew that he would refuse to provide pies for a same-sex marriage celebration. Asked about other events he’d refuse, he mentioned that he was against abortion, and said he wasn’t certain what he’d do if asked to provide services for weddings involving a divorced bride or groom.

(As an aside, the First Church of Cannabis was formed in Indiana within days of the RFRA’s enactment.)

If protests against the expansion of RFRA to include disputes between private individuals seem familiar, it’s because the same thing happened when Arizona lawmakers tried to amend the state’s RFRA to apply to disputes between individuals. Governor Jan Brewer eventually vetoed the bill primarily because of a flood of protests similar to those now leveled against Indiana.

To make things worse, the expansion of the Indiana law explicitly applies to corporations as well as individuals, and is not limited (as was the Hobby Lobby decision) to closely-held or family owned corporations.

Indiana can expect a torrent of law suits if it leaves the bill in place. I don’t know how much cash is in the state’s coffers, or whether it’s court system is already overburdened, but I’d be willing to bet the added expense and workload won’t be welcome — especially with decreased revenue from corporations that choose to avoid the state rather than subject employees to the threat of discrimination, from cancelled conventions and sports events, and the unavoidable reduction in tourist trade.

Face it Indiana. You’re RFRA isn’t just offensive — it’s bad business. Cut your losses and dump the statute so all of us can move on.

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