Not All RFRAs Are Alike

theocracy

Jennifer C. Pizer, Senior Counsel and Law and Policy Project National Director (Lambda Legal)

Indiana Gov. Mike Pence rushed today to sign SB 101, the "Religious Freedom Restoration Act (RFRA)" -- so-called, though it's not restoring religious rights; it's expanding them.

In his signing statement, Gov. Pence gave Hoosiers a misleading picture of how dangerous this new law is. Passed by the Indiana Senate in February, and the Indiana House of Representatives just days ago, one has to wonder: What's the rush?

The truth is, Indiana's RFRA is designed to allow and in some respects, invites people to disregard laws that should apply to everyone conducting a business -- laws to prevent people from harming each other in the name of religion.

At Lambda Legal, our top concern is religiously motivated discrimination against people already vulnerable to exclusion and mistreatment, especially the LGBT community.

Gov. Pence, in his signing statement, said, "This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved."

He's wrong, or disingenuous, on both points. If this new law does not seek to facilitate discrimination, why did legislators pressing for its passage say it's "needed" to allow businesses to turn away same-sex couples? And why did a majority of Indiana legislators then reject amendments offered to specify that these enhanced religious rights cannot be used to excuse discrimination?

Further, about disputes between private parties, the law says explicitly, "A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." This language was included to allow private parties to object to following a law that otherwise would apply to them, and to assert these expanded religious rights in a dispute with another private party.

A stark problem for LGBT Hoosiers is that unlike in other states, Indiana law does not include sexual orientation and gender identity within the state's nondiscrimination framework.

When antigay lawmakers say laws like this are "needed," and they point to cases from other states where we successfully resisted use of religion to defend discrimination, they don't acknowledge that a statewide nondiscrimination law was on the books in those places. Currently, less than half the states have such laws.

A dozen Indiana municipalities do have nondiscrimination protections in place. These are important and, at Lambda Legal, we will have eyes and ears open to hear from anyone who does experience rejection from a business, especially where a local law forbids that behavior.

As needed and where there are means for challenging such wrongful conduct, we will be eager to take Gov. Pence and others at their word that this new law is not about religion-based refusals and exclusions of LGBT people or anyone else, and to make that case in court.

Unfortunately for Indiana's court system, there may be all too many situations warranting such litigation. Lambda Legal has been monitoring RFRAs all across the country and Indiana's new law has aggressive elements. The well-settled general rule is that none of us can start litigation to claim rights have been violated until harmful conduct has happened or is urgently imminent, that a violation of one's rights is "likely" isn't usually enough. Indiana's SB 101 changes that, expanding when religious justifications for violating a law can be advanced, and also provides those expanded religious rights to commercial businesses as well as religious groups and individual human beings.

Lastly, Gov. Pence and the law's supporters say it doesn't dictate the outcome of conflicts, and that LGBT people will still be able to argue about their needs in court. But this is precisely why we are so concerned. Most people lack the desire, let alone the resources, to litigate when refused service, when rejected and turned away, when publicly humiliated just for who they are. They don't run to court; instead, they simply absorb the hurtful, demeaning message of being unwelcome, and they go elsewhere.

It is no secret that many of those pressing so intensely to enact laws of this type are doing so in negative response to same-sex couples being newly able to marry (as they can in Indiana thanks to litigation of which Lambda Legal is very proud).

When the politically endorsed message is that religious reasons for conduct should be elevated above other shared civic values and interests, that message encourages the exclusions, the hostile rhetoric, and the social stigma that enact a terrible toll on the health of LGBT people.

As Indiana business leaders, Republican mayors and others said when urging Gov. Pence to pause and consider before signing, this new law takes Indiana in the wrong direction. Now, while Lambda Legal stands by to do our best to help those turned away from businesses, refused jobs, housing or medical care, protest campaigns are emerging by Athlete Ally (#final4fairness), convention planners and religious groups. The economic and legal consequences for Indiana will unfold with time.

But two things are certain. This confusing, needless law will bring an increase in discord, discrimination and litigation. And, it would have been far, far better for the good people of Indiana if Gov. Pence had opened his eyes wider to the needs of his state, and vetoed rather than embracing this bill.

If you have questions or feel that you have been discriminated against based on your sexual orientation, gender identity or HIV status, please contact Lambda Legal's Help Desk.

Lambda Legal is grateful to the Anita May Rosenstein Foundation for partially funding the work of the Law and Policy Project.

Via Lambda Legal

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