Religious Liberty and the Unsafe Space Movement

There is nothing new about statewide Religious Freedom Restoration Acts (“RFRA”). After the Supreme Court held that the federal RFRA did not apply to the states, about two dozen states in the South and Midwest passed statewide versions of the federal law preventing any religiously neutral law from infringing upon the free exercise of religion. Such statutes co-exist with LGBT non-discrimination laws in few states. For example, only four states have passed both a RFRA and a gay Employment Non-Discrimination Act: Connecticut, Illinois, New Mexico, and Rhode Island.

On March 25, 2015, Indiana Governor Mike Pence signed into law the Indiana Religious Freedom Restoration Act (“IRFRA”). The Act establishes that a right to free exercise of religion shall not be substantially burdened. Beneficiaries of the act include people like you and me, religious societies, corporations, and other entities. Anyone who has “substantial ownership” of a company or organization has free range to define the religious beliefs of the entity and act accordingly. This alone should be setting off alarms.

You remember when then-Governor of Arizona vetoed Arizona’s RFRA makeover. In 2014, the business community lobbied hard for a gubernatorial veto of language similar to IRFRA on the grounds that the proposed law in Arizona opened the door to discrimination of LGBTs. Besides the troublingly expansive view of religion and those who can exercise it, Indiana’s RFRA and the failed sister statute in Arizona share a private law component that would permit individuals (including companies, organizations, etc.) to defend practices on the basis of religion.

So let’s do the math. Indiana: no statewide statute prohibiting discrimination against LGBTs. Strong anti-gay sentiment in the state. Indiana forced to recognize marriage equality in October 2014 when the Supreme Court denied cert on Indiana’s same sex marriage appeal. People are unhappy. Indiana passes a broad law giving just about anyone the ability to invoke religious belief as a rock-solid defense in a lawsuit. The floodgates are open.

The public response to IRFRA has been too little, too late. As we have seen with efforts to overturn the various marriage amendments that caught fire in the 2000s, it is extraordinarily difficult to change a law affecting a minority population once the Governor has signed their approval. Everyone from the Governor of Connecticut to Apple CEO Tim Cook to the immortal Cher has spoken out against IRFRA. Yet repeal remains off the table.

Some have cried foul in response to the media, businesses, and LGBT organizations’ allegations that IRFRA’s goal is to legalize discrimination against LGBTs. While I can’t disagree with anyone who says “this law isn’t discriminatory on its face,” the law need not contain discriminatory language or obvious discriminatory intent to result in a disparate impact on a particular group. Since Indiana offers no RFRA-like blanket protection to LGBTs who suffer discrimination by laws that don’t explicitly discriminate, I’m not willing to take the laboratory of democracy stance and say “let’s wait and see” in Indiana. IRFRA’s effect on LGBT residents and visitors in Indiana may not be obvious from the text of the statute, but the implications are clear when minimal thought is given to the issue. Or when Indiana business owners proudly proclaim their joy for discriminating against the gays. Or when we see such refusals happening across the country. Wait and see, in Indiana, is little more than waiting for the inevitable.

If religion is invoked to explain whom a business owner will or will not serve, what is the difference between turning away a gay patron, a black patron, a disabled patron, or a transgender patron? When the law privileges religious belief over legitimate government interests in societal equality–regardless of whether a particular religion actually mandates a refusal to serve–how can minorities ever turn to government to protect them from bigotry? After all, Section 5 of IRFRA reads: “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” (Though our friends at the National Review seem to have missed this part of the law.)

Despite last week’s media circus, Indiana Governor Mike Pence continues to insist that IRFRA isn’t about discrimination. Pence has expressed support for a “fix,” but he has failed to publicly acknowledge that LGBTs could be affected by the law. Furthermore, shielding LGBTs from discrimination under RFRA in particular fails to acknowledge that no statewide law offers nondiscrimination protections to the queer community. Add to that the new revelation (according to some) that IRFRA will inevitably put Indiana’s Christians behind bars. Nobody appears to be happy with IRFRA right now.

You’ve probably heard of the Gay, Lesbian and Straight Education Network’s safe space program, which focuses on working with public schools to create safe spaces for LGBT and questioning youth. This is an effort to combat bullying and assure queer youth that they are not alone. What the new RFRAs are designed to accomplish, as a response to advances in LGBT civil rights, is to set up state-sanctioned Unsafe Spaces for LGBT people. Unsafe Spaces already permeate America’s social landscape, but in most circumstances, there appears to be consensus that we should be reducing those spaces, not expanding them. Women should feel safe at work. Black men should feel safe standing on the sidewalk. Latinos should feel safe driving in Arizona. Why is the Indiana legislature hell bent on carving out a 36,418 sq mi Unsafe Space for LGBTs?

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Stephen is a 3L at HLS. He is a Massachusetts native and a first generation American, graduating from Yale College in 2010. Prior to law school, Stephen provided assistance to indigent LGBT and HIV-positive asylum seekers at Immigration Equality in New York City. Stephen's interests include immigration, criminal defense, and alternative dispute resolution.

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