Indiana Legislature To Vote On Revised RFRA Addressing Discrimination Concerns

Indiana's RFRA will be amended to address most of the concerns of its opponents. That counts as a victory.

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The leaders of the Indiana legislature have introduced an amendment that is being debated today that would amend the Religious Freedom Restoration Act enacted in that state last week, and which has become the subject of national controversy ever since:

INDIANAPOLIS — Indiana’s Republican top lawmakers on Thursday announced plans to change a divisive measure billed as a religious freedom law, to make clear that it does not permit discrimination against gay men and lesbians, a day after the governor of Arkansas said he would not sign a similar bill.

The law enacted last week in Indiana, and the prospect of similar measures in other states, set off a national uproar, as critics charged that it was an anti-gay statute in the guise of religious freedom. An array of major companies and associations, and political figures around the country, spoke out against the law, and some said they would boycott Indiana, prompting state business leaders to demand changes in a measure they said had hurt the state’s economy and reputation.

A news conference Thursday morning in the statehouse in Indianapolis demonstrated the power of that economic argument, as a cadre of executives, along with gay rights activists, joined lawmakers to hail the proposed amendment to the Religious Freedom Restoration Act, which they said they expected to be approved by the General Assembly.

“Today’s a significant day,” said Allison Melangton, who led the city’s 2012 Super Bowl host committee. “It’s going to show us in our true light.”

Barton R. Peterson, senior vice president of Eli Lilly and a former Indianapolis mayor, said “the future of Indiana was at stake,” and he praised lawmakers for putting the state’s interests “above the desire to win, above the need for ideological purity, above the demands of politics.”

The Republican leaders of the State Senate and House continued to insist that the original bill did not permit discrimination.

“We are sorry that that misinterpretation hurt so many people,” said the House speaker, Brian C. Bosma. “I think the national concerns that were raised, that we’re all hearing about, are put to bed.”

Gay leaders welcomed the amendment but said it was just a first step. Indiana, like most states, they said, does not have a law explicitly barring discrimination based on sexual orientation. The legislative leaders would not commit to considering such a provision, calling it a separate, more difficult issue, but suggested that a discussion of it was now inevitable.

“They’re going to be hearing from us again,” said Kathy Sarris, president of Indiana Equality, a gay rights group. “We’re not going away.”

In its relevant part, the text of the amendment, which you can access here, provides the following:

This chapter does not:

(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public, on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services,facilities, use of public accommodations, goods, employment, rhousing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or

(3) negate any rights available under the Constitution of the State Of Indiana

Essentially what this means is that legislature is inserting language into the state’s RFRA that states that the protections provided by the law cannot be used to authorize discrimination on the basis listed, nor is it available as a defense in a private civil action based on such a denial of service. There is another new provision that would be added to the law that would provide protections for explicitly religious institutions such as churches as well as ministers and rabbis. The significant language for Indiana law, though, is the fact that it includes sexual orientation and gender identity among the protected classes. As noted, this does not mean that Indiana is adopting a law banning discrimination on based on these criteria statewide, that will require legislative action in the future and would likely be the subject of vigorous debate. It does mean, though, that the RFRA law cannot be used as a defense to an action under any such anti-discrimination law that may exist at the municipal level. As I noted earlier this week, there is such a statute in effect in the city of Indianapolis at the very least and it’s likely we might see activists push for the adopting of similar local measures in communities where they would have a good chance of passing.

Leaving aside the more general objections to RFRA-like statutes such as those I discussed in the wake of the Hobby Lobby decision, this amendment to the law does seem to address the main objections of the opponents of Indiana’s RFRA, as well as those pending in Arkansas, North Carolina, and Virginia. It makes clear that the law cannot be used as a defense to a claim of discrimination based on sexual orientation and gender identity, and that alone seems to be a significant advance for Indiana on the issue of gay rights. Activists will likely be disappointed that the legislature is not immediately passing a law adding those categories to the protected classes on public accommodation laws, but I’d suggest that they accept this victory for what it is rather than trying to get blood from the legislative stone, so to speak. Under the current circumstances, this is about the best they are going to get from the legislators in Indiana, and it addresses most of what they objected to in the law that Governor Pence signed into law last week.

FILED UNDER: Law and the Courts, Religion, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Iran and the US have reportedly reached an agreement on nukes.
    Now watch the war-mongers heads explode.

  2. Neil Hudelson says:

    Activists will likely be disappointed that the legislature is not immediately passing a law adding those categories to the protected classes on public accommodation laws, but I’d suggest that they accept this victory for what it is rather than trying to get blood from the legislative stone, so to speak.

    On the contrary, we are overjoyed. In one week activists forged a completely new coalition in Indiana, aligning the most powerful businesses (traditional Republican allies all) with progressive social issues, fixed a disastrous bill, added positive LGBT language for the first time in the state’s history, stopped similar bills in Arkansas, NC, and Georgia, destroyed a homophobic Governor’s political career (probably), and set up a vibrant campaign to push for full anti-discrimination legislation.

    Indiana Activists aren’t disappointed–they rightly feel they’ve won one of the most shocking political victories in recent history.

  3. DrDaveT says:

    Has any advocate for the bill yet stated publicly a concrete example of what this law is supposed to be protecting Hoosiers from? By which I mean a factual historical instance of someone’s religious beliefs being ‘burdened’ in a way that will now be illegal…

  4. HarvardLaw92 says:

    I’ve been pondering whether or not the outcome of these clearly animus based statutes would be suspect class status for homosexuals, and increasingly thinking “yea, it could end up going there”. If so, then good. It’s probably overdue.

    As usual, these ideologues are cutting off their noses to spite their faces.

  5. Mikey says:

    @DrDaveT: Isn’t it obvious? It protects them from having to associate with the icky gay people. Such association constitutes an offense to Christianity, because reasons. Ipso facto. Cogito ergo sum. Lorem ipsum.

  6. grumpy realist says:

    @HarvardLaw92: Yes, because it’s quite likely that the “don’t-wanna-bake-a-cake-for-an-icky-gay-wedding” guys will think that this modification outlaws discrimination against gays in Indiana. Ha.

  7. de stijl says:

    @Neil Hudelson:

    Congratulations to you and in Indiana ACLU!

  8. de stijl says:

    @HarvardLaw92:

    IANAL (not even a small town pizza lawyer) So when you say:

    I’ve been pondering whether or not the outcome of these clearly animus based statutes would be suspect class status for homosexuals, and increasingly thinking “yea, it could end up going there”.

    do you mean that the developments in Indiana and Arkansas could provide the impetus to add sexual orientation to protected class status?

  9. James P says:

    @C. Clavin: This is not a deal between Iran and the US. This is a deal between Iran and a Manchurian community organizer.

    When we get a president in 22 months he or she will not be bound by this. I’m glad that Sen. Cotton let the Iranians know this.

  10. HarvardLaw92 says:

    @de stijl:

    I mean the overall climate – one of reactionary animus against homosexuals – which is being fairly vividly expressed through these laws lends itself to a court or courts determining that there is sufficient justification for establishing them as a protected class.

  11. de stijl says:

    @HarvardLaw92:

    Thanks! That’s what I thought you meant.

  12. grumpy realist says:

    (troll is bored, I see. Troll does not want to do homework. Troll is going to flunk test.)

  13. stonetools says:

    @Neil Hudelson:

    Indiana Activists aren’t disappointed–they rightly feel they’ve won one of the most shocking political victories in recent history

    You guys should feel great -you won a big one, in hostile (that is Republican controlled) territory at that. The So Cons clearly wanted to build on Hobby Lobby and use a supercharged RFRA to create a broad religious exemption to anti-gay discrimination laws-and you stopped them cold.Generally, Republicans are able to get away with this type of thing through disingenous avowals that the law isn’t meant to do what it is in fact intended to do, but you guys stuck to your guns and blew the lid off what was supposed to be a stealth initiative to sneak in a a license to discriminate on the basis of religion. This will have effects not only in Indiana, but nationwide.

    You also, btw, torpedoed any presidential aspirations for Governor Pence , who has been revealed as a consummate buffoon and stooge of the so cons, for those who didn’t know it. All in all, a good two weeks work. So take a well earned victory lap and hoist a few.

  14. DrDaveT says:

    @Mikey:

    Isn’t it obvious?

    Well, yeah, it’s obvious — but is there really nobody at all on the “Heavens, it’s not intended to allow discrimination” side who either had a backup plan or can think on their feet? I mean, when was the last time that a state passed and stood by a law prohibiting something that none of the legislators had ever seen or even heard rumor of?

    “Now that this law no longer allows discrimination against gays, it still serves to protect the citizens of Indiana from incidents like _____.” If none of the advocates can fill in the blank, that’s just pathetic.

  15. James P says:

    @HarvardLaw92:

    lends itself to a court or courts determining that there is sufficient justification for establishing them as a protected class.

    That would be legislating. That’s the purview of the Legislative branch. The Judicial branch does not have the power to legislate —- at least not in theory anyway. Didn’t they teach you that in law school?

    It is statements like these which reflect a profound ignorance of the role of the courts which make people question whether you went to law school. The court does not have the power to establish a protected class of anything – that’s why we have a legislature.

  16. Tyrell says:

    @de stijl: At one time the ACLU used to speak for the rights of everyday people. Now it is mainly a shadow of itself, going around creating a scene, meddling in peoples’ lives, and involved in some misguided effort to keep a few people from being offended. It is no longer about freedom. It is about controlling everyone elses freedoms.

  17. James P says:

    @Tyrell: Exactly! The victims here are the Christians. It is the Gay-stapo who are the aggressors and the bullies. They are the ones trying to impose their values on others. Woe to anyone who might deign to disagree with them.

    This is all about harassing Christians.

  18. HarvardLaw92 says:

    @James P:

    Suspect class status refers to a standard of judicial review applied to laws passed by legislatures, genius. One created by, and applied by, the courts.

    If you were an attorney, you’d understand that. Perhaps one of Jenos’ other sockpuppets is an attorney and can explain it to you.