By Allison Schultz
On March 26th, Indiana Governor Mike Pence signed Indiana’s Religious Freedom Restoration Act (RFRA) into law. Unlike the federal RFRA and most other state RFRAs, Indiana’s law explicitly stated that it could be invoked as a defense in private litigation — lawsuits in which the government is not a party. As the national media quickly pointed out, this meant that Indiana’s RFRA could be used as a defense in, for example, lawsuits alleging discrimination on the basis of sexual orientation.
Just one week later, in response to nationwide outcry, Governor Pence signed a RFRA “fix” that “clarified” that the law could not be used to justify discrimination on the basis of, among other things, sexual orientation. This is significant as it is the first time a statewide law explicitly creates a kind of protection based on sexual orientation — the state’s public accommodation law does not protect against discrimination on the basis of sexual orientation or gender identity.
This is undoubtedly a win for LGBT rights. But amidst celebration, it’s important to also take a few minutes to reflect on a few of the lessons and implications of how this past week has unfolded.
First, what can we learn from the Indiana RFRA saga about the state of LGBT rights in America? In short, it seems like tolerance for intolerance is wearing thin. Protest against the law was both immediate and intense, even though the practical consequences of the law vis-à-vis discrimination were actually far from certain. RFRA doesn’t create automatic exemptions for religious exercise. Rather, it states that a governmental entity may only substantially burden religious exercise if doing so is the least restrictive means of furthering a compelling state interest.
Two things are significant here. First, in order for RFRA to apply, a burden on religious exercise must be substantial. Courts have interpreted this to mean that a law must require an individual herself to engage in conduct that violates her religious beliefs. It’s unclear that creating a floral arrangement for a gay wedding would qualify. Second, RFRA will not provide a defense if the law in question is necessary to further a compelling state interest. Numerous state courts, and the Supreme Court, have recognized that anti-discrimination laws are the least restrictive means of furthering a compelling interest.
It’s certainly possible that a court would have allowed RFRA to be used as a defense in a discrimination suit, but it’s also possible that Indiana’s RFRA was more symbolic than anything else. The response, then, is also important for its symbolic value. Much of the nation, it seems, will no longer abide by even a suggestion of anti-LGBT discrimination. This could be quite significant as the Supreme Court gears up for oral argument in its landmark gay marriage case. If, as many have suggested, the Supreme Court is constrained by public opinion, then such a public outpouring of support for LGBT rights may influence how the Justices approach this case.
Second, what does all of this tell us about the relationship between the public and the legislature? If the public outcry over Indiana’s RFRA actually reflects how the majority of Americans feel, that Indiana passed this law in the first place indicates a troubling disconnect between legislative priorities and public opinion. It seems pretty clear that the law was primarily driven by a few conservative advocacy groups. It’s great that the law was quickly amended, but it should be a cause for concern anytime a law is passed only to be met with instantaneous and widespread public protest.
But this leads to another question: who exactly did protest the Indiana RFRA? Some Indiana businesses and universities were part of the backlash, but most of it seemed to be driven by organizations, businesses, and states outside of Indiana. With all of the media attention focused on the major national organizations boycotting Indiana, it’s unclear what the majority of Hoosiers actually think about the law. Should this matter? Unlike school desegregation or the Civil Rights Act, whether Indiana’s RFRA should protect religiously motivated discrimination is neither a constitutional question nor a matter of federal law. Amidst celebrating the victory that the “fix” to Indiana’s RFRA represents for LGBT rights, it is also worth thinking about what this story says about the political accountability of state legislatures. It certainly appears as though Indiana’s RFRA was a law created by conservative interest groups and amended by national pressure. When it comes to potentially discriminatory laws, whose interests should drive state law?