As Indiana Gov. Mike Pence signed a new law this week guaranteeing religious freedom against governmental interference, a debate over whether those laws can be used to trump anti-discrimination protections for lesbians and gays continues, along with the question of how best to legislatively balance those competing interests.
The Hoosier state measure, passed by large majorities in both legislative chambers, is modeled on a 1993 federal law. Opponents, including gay rights groups, the mayor of Indianapolis and the American Civil Liberties Union, claim the measure might sanction discrimination, something Pence rebuffed.
"If I thought it legalized discrimination in any way in Indiana, I would have vetoed it," Pence said in a statement. "In fact, it does not even apply to disputes between private parties unless government action is involved."
Eunice Rho, an ACLU attorney in New York monitoring the state measures, is less certain such measures won't impinge on civil rights.
"I wish I could be as confident about what will happen next under these laws," Rho said. Because the Indiana measure does not carve out protections for employment and housing issues, she said it would "allow people to mount a challenge to any law on the books, including nondiscrimination laws."
The disagreement over the intent of the law go to the heart of a debate on whether a state-level version of the federal RFRA, is the best way negotiate the dual challenges of ensuring non-discrimination against gays and lesbians while protecting the conscience rights of everyone.
Businesses, ironically, often find themselves in the middle. Last year, RFRA-styled measures in Arizona and Georgia failed when businesses expressed fears about boycotts and potential impact on local economies. Indiana-based companies, and groups which hold large meetings in the states, also protested the 2015 measure, but to no avail. And, Delta Air Lines, which employs 6,000 people in the state, has so far been mute on the new Georgia bill, while it vocally opposed the measure last year.
Indiana is just one of about a dozen states where lawmakers pursued a strategy of applying the 20-year-old federal statute designed to protect religious minorities against government regulations, according to tracking by the Baptist Joint Committee for Religious Liberty. Nineteen other states have enacted RFRA bills over the past 18 years.
Since a June 2014 Supreme Court ruling recognized a religious conscience right for owners of private companies. It also refocused attention on state regulations; since the high court had ruled in 1997 the federal law did not apply to the states.
In January, the Deseret News spoke with a legislative expert on why states are reviewing their options.
"We anticipate an uptick in state legislation this year regarding state RFRAs," said Jonathan Griffin, a policy specialist for the National Conference of State Legislatures in Denver, said at the time.
Robert Katz, a law professor at Indiana University's law school campus in Indianapolis, said a RFRA uses a "sledgehammer" to attack anti-religious discrimination issues where a "flyswatter" would be better applied.
"The burden is on the people proposing legislation to explain why it's needed, as opposed to asking the people who oppose the legislation to explain what's wrong with it," Katz said. "It's especially important here because the legislation has far-reaching consequences. Every law in Indiana now is going to be subject to RFRA."
Fifty-one miles to Katz's south, at IU's Bloomington law campus, professor Daniel Conkle disputes the idea that RFRAs are heavy-handed when it comes to gay rights. "If it's a sledgehammer," Conkle said, RFRAs "hasn't seemed to be that for the federal government or for the majority of the states."
Conkle said there have been no instances of individuals winning a "right to discriminate" by claiming a religious objection.
"Only a relative handful of claims of that kind," have been made, Conkle added, "and, to the extent they've been litigated either by (state) civil rights commissions or the courts, the claims have so far been uniformly rejected."
Conkle, who said he supports both gay rights and same-sex marriage, said the "main problem" in Indiana is a lack of statewide anti-discrimination protections for LGBT people in terms of employment and housing. Several cities and counties have laws offering these protections, however.
A statewide bill protecting gays, Conkle said, is "the point of emphasis I would have, rather than make a point in favor of gay rights in an attack on a religious freedom provision that's designed to protect a different civil liberty. We ought to promote religious freedom and freedom from discrimination — they're not contradictory."
Jennifer C. Pizer, an attorney with Lambda Legal, said specific protections are desirable, especially in light of the broadly worded Indiana statute.
"It would have helped had the (Indiana) legislators accepted the proposed amendment excluding use of these enhanced religious rights as a defense to a civil rights claim," she said. "As it is, discrimination on any prohibited basis in Indiana may be argued about now in ways not possible" before the bill became law.
According to Robin Fretwell Wilson, director of the family law project at the Illinois School of Law, such specific anti-discrimination legislation is a better way of serving all sides than a RFRA would provide, since such measures are chiefly designed to protect citizens from governmental "burdens" on their free exercise of religion.
"When it comes to gay rights, RFRA will not do the work people think it's going to do," Wilson said. "When RFRA is a shield against the government, it's one thing, but when it's a sledgehammer to knock down another group, that's another (matter)."
Wide application feared
Both Pizer and the ACLU expressed concerns about the application of RFRAs, federal and state, to businesses. ACLU attorney Rose Saxe admitted the state RFRA's "are not explicitly anti-LGBT," although she said "allowing religion to challenge any law or policy falls disproportionately on LGBT people." Pizer asserted the measures could justify discrimination in light of the Supreme Court's 2014 ruling.
"Because the Hobby Lobby decision approved business owners excluding health insurance coverage that women workers need, based on the owners’ religious views, with no principled framework setting limits to that approach, it is not reassuring in the least to have SB101’s supporters pointing to federal RFRA as the (example)," Pizer said.
But Travis S. Weber, who directs the Family Research Council's Center for Religious Liberty, dismissed those concerns.
"The federal RFRA has been around since 1993, (and) if you look at the history of how it's been litigated, you have no history of what the opponents claim," Weber said from his Washington, D.C., office. "The fears are unfounded."
Weber said individuals seeking the protection of a state RFRA would have to make their case in court, demonstrating not only that a religious belief is sincerely held, but also that the government demand in question is a "burden" to that observance.
He added that while a lot of attention from critics focuses "on the sexuality issue," Weber asserted the state measures are intended to address issues such as local zoning regulations that sometimes plague congregations. And, Weber said, the proposed RFRA laws "protect the rights of all citizens," and not just those of any particular faith's members.
Douglas Laycock, a University of Virginia law professor who specializes in religious liberty issues and was involved in the drafting of the 1993 federal statute also disputed the "license to discriminate" claim against the bills. He said, "No one has ever won an exemption for discrimination under a state RFRA law."
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