Exactly one week after signing a controversial discrimination measure into law, and touching off a week of national controversy, Indiana Gov. Mike Pence (R) signed a new bill yesterday intended to bring some clarity to the debate.
Indiana’s Republican Gov. Mike Pence signed into law a proposed fix to the week-old Religious Freedom Restoration Act (RFRA) on Thursday amid uncertainty as to whether the move would ease intense criticism plaguing the Hoosier State.“There will be some who think this legislation goes too far and some who think it does not go far enough, but as governor I must always put the interest of our state first and ask myself every day, ‘What is best for Indiana?’” Pence said in a statement.
The announcement in Indiana coincided with Arkansas Gov. Asa Hutchinson (R) signing a scaled-back version of a related right-to-discriminate proposal.
There tends to be a trajectory to stories like these. There’s an action, followed by a backlash, followed by a weak defense, followed by a resolution. Pence signed a bad bill into law, which quickly turned into a fiasco. The governor said he wouldn’t change the law, then he changed his mind, and it’s likely the political world will now start to move on, satisfied that a wrong has been corrected.
But in this case, that’s arguably a shame, not because there’s value in belaboring the point, but because the “fix” in Indiana is not a genuine resolution.
“Our position is that this ‘fix’ is insufficient,” Angie’s List CEO Bill Oesterle said. “There was not a repeal of RFRA and no end to discrimination of homosexuals in Indiana. Employers in most of the state of Indiana can fire a person simply for being Lesbian, Gay, Bisexual, Transgender or Questioning. That’s just not right and that’s the real issue here.”
There’s no denying that yesterday’s bill improved last week’s statute, and those who protested Indiana’s right-to-discriminate law have reason to be pleased: they demanded change and got it. Given the prevailing political winds in Indiana – led by a very conservative governor and equally conservative state legislature – this was no small task.
But the Angie’s List CEO raises an important point, and the broader debate has helped bring attention to the problem that existed before Pence put his signature on an offensive bill last week. David S. Cohen and Leonore Carpenter had a good piece on this yesterday:
People like to think that discrimination is “not allowed” in America. Employers can’t discriminate in hiring and firing; businesses have to serve people without being discriminatory; schools can’t discriminate in grades and disciplining students; and landlords can’t be discriminatory in renting property. Discrimination, people believe, is un-American and forbidden by the Constitution, particularly by the equal protection clause.However, discrimination is perfectly lawful in most circumstances. The Constitution protects us from only certain types of discrimination and only at the hands of the government itself. The baseline of American law is actually that private employers can pick and choose the people they want to hire and fire based on good, bad, or irrelevant reasons, including discriminatory ones. Businesses can do the same when deciding which people to serve; schools and landlords with the people they educate or rent to.In order for a state or the federal government to carve out exceptions to this general rule, that government has to pass a law that does so. Federal law, for example, removes race, religion, national origin, and sex from being the basis for employment decisions for all employers over a particular size.
But federal law does not extend protections against employment discrimination to LGBT Americans, and though some states have rectified the omission at the state level, many, including Indiana, have not.
For example, if an Indiana employer showed up at work today and told a gay employee, “I don’t like gay people, so you’re fired,” that would be legal. It was legally permissible last week; it will be legally permissible next week.
German Lopez explained that the new fix in Indiana “won’t add sexual orientation and gender identity to separate civil rights laws that prohibit discrimination in the workplace, housing, and places that serve the general public, meaning it will remain legal to discriminate against LGBT people in much of the state without a religious objection.”
Yesterday marked a step in the right direction, undoing a policy that shouldn’t have been approved. But to assume that discrimination is now illegal in Indiana, Arkansas, and the other 27 states with similar civil-rights laws is a mistake.