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.
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.