Last week, Stephen Silva wrote an article critiquing the Indiana Religious Freedom Restoration Act (RFRA) for opening the door to increased LGBT discrimination in the state. As it turned out, many Americans shared his concerns. The public response in the week following the law’s enactment was overwhelmingly negative: interest groups and public officials voiced their disapproval, and several corporations threatened to scale back their operations in the state. The backlash was so severe that Indiana Governor Mike Pence, after a week of defending the RFRA on the grounds that it did not sanction discrimination, was forced to reconsider his position. On March 31st he announced that he would be soliciting a “fix” from the legislature that would “clarify” the scope of the Indiana RFRA. That clarification was published on the morning of April 2nd, and explicitly prohibits “service providers from using the law as a legal defense for refusing to provide services, goods, facilities or accommodations.” But does the RFRA compromise do enough to curb LGBT discrimination in Indiana?
In order to fully understand the RFRA compromise in context, let’s start with why the law was so controversial in the first place:
The RFRA is a law that protects the free exercise of religion by mandating that individuals’ and corporations’ religious liberties can only be limited by the “least restrictive means of furthering a compelling government interest. ” The bill tracks most of the language of the federal RFRA and lays out a similar balancing test for litigation, placing the exercise of religion on one side and the government interest on the other. Under both the federal and the Indiana laws, if the government’s interest is not compelling enough, it cannot outweigh an individual’s right to practice his or her religion as he or she sees fit.
So if RFRA is already on the federal books, why was everyone so concerned when Indiana passed essentially the same bill? The Indiana RFRA was particularly problematic for two reasons: first, it was unclear how Indiana courts would interpret the “compelling interest requirement,” or how the law would interact with local anti-discrimination ordinances. Second, it deviated from the language of the federal RFRA in at least two significant ways that could increase the avenues through which LGBT Americans and others are subjected to discrimination.
What satisfies a “compelling government interest”?
Critics of the Indiana RFRA were worried about how the “compelling government interest” requirement would be interpreted by Indiana courts. As Indiana law stands, preventing race and gender based discrimination qualifies as a compelling government interest. However, there is no state law prohibiting discrimination against members of the LGBT community. Proponents of the bill who argued that the law would protect business-owners from serving LGBT patrons were clearly hoping that the courts would find no compelling interest in preventing LGBT discrimination.
Further, it was unclear how Indiana courts would reconcile the state RFRA with local ordinances that prohibit LGBT discrimination in municipalities such as Indianapolis. On one hand, they may have found that the local ordinances serve as evidence of the compelling interest in preventing LGBT discrimination. However, they could also have found that the RFRA overrode the local ordinances of cities like Indianapolis. This uncertainty was problematic for members of the LGBT community, who responded to the law’s enactment by advocating for updated state laws against LGBT discrimination in housing, employment, and public accommodations.
Is the Indiana RFRA really identical to the federal RFRA?
Opponents of the law also pointed to two ways in which it differed from the federal RFRA, that they argued were likely to increased the potential for discrimination:
First, the Indiana RFRA explicitly allows the religious defense in legal disputes where the lawsuit is brought by a private entity. It is unclear whether the federal government intended to allow individuals and corporations to invoke the federal RFRA in disputes brought by private parties. The court was silent on this issue in the Hobby Lobby opinion, and federal courts are currently split. The Indiana law is different because it explicitly states that the RFRA defense can be used in private lawsuits. This significant distinction could open the door for individuals or businesses to discriminate against same-sex couples or any other individuals whose lifestyles offend their religious beliefs.
Second, the Indiana RFRA protects the religious exercise of all individuals and groups including for-profit corporations. This is a significant deviation from the federal RFRA, which grants this right only to individuals, nonprofit organizations, and (in the case of Hobby Lobby) closely-held corporations where owners share the same religious beliefs. The implications of this distinction are huge; the Indiana RFRA expanded the religious liberty defense to any group of people or corporation, regardless of whether its members share the same beliefs or whether it was incorporated for secular or religious reasons.
So how does Governor Pence’s new “fix” address these concerns? It seems as though it has been effective in quelling the public outcry, but advocates say that it does not go far enough to protect the interest of the LGBT community. To be clear, the RFRA has not been repealed; the legislature has simply added an amendment that it cannot be used to deny service, goods, facilities or accommodations.
On its face, the provision seems to address many of the concerns related to the Indiana RFRA; however, we should be hesitant to accept it as a “win” for the LGBT community. The provision only restricts the scope of the RFRA defense, and does not change existing Indiana anti-discrimination law. There is still no legal protection in Indiana against discrimination based on LGBT status in education, employment, or housing. Essentially, this provision will simply revert LGBT discrimination to the status quo: municipalities such as Indianapolis will continue to outlaw it, while it will remain legal elsewhere in the state.
Another concern with the compromise is that it does not change any of the language expanding the RFRA right of action. This means that a broader range of entities have access to the RFRA defense in cases that do not fall under the specific provisions of the amendment. The American Civil Liberties Union commented Thursday morning that, “it still poses a risk that it can be used to deny rights to others, including in education, access to health case, and other aspects of peoples’ lives.”
The RFRA compromise was Governor Pence’s attempt at damage control, and it has been relatively successful for that purpose. However, it does not by any means signify equality for LGBT Hoosiers. Indiana still has a long way to go toward ensuring that all of its residents enjoy equal protection under the law.