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. "I believe resolving this controversy and making clear that every person feels welcome and respected in our state is best for Indiana."
The so-called "fix" was met with mixed reactions on Thursday, exactly one week after Pence signed the bill into law and unleashed an avalanche of national scorn. While some of the measure’s most influential critics from the business community hailed lawmakers’ efforts to make clear that the RFRA could not be used to discriminate against patrons on the basis of their sexual orientation or gender identity, more liberal groups argued that the clarification did not go far enough. Social conservatives, meanwhile, expressed frustration with Republican lawmakers for even considering changes that they felt could weaken the law.
The big question now is whether this fix will effectively calm the intensifying backlash against Indiana, or whether it will create more enemies of the state.
"Our position is that this ‘fix’ is insufficient,” said Angie’s List CEO Bill Oesterle, who announced over the weekend that he would halt the company’s planned expansion to its campus in Indianapolis over the new RFRA. “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.”
Republican leaders announced on Thursday morning that they would present Indiana lawmakers with a clarification to the RFRA, which critics have blasted in the past week as a gateway to broad discrimination on religious grounds. Under the law in its previous form, corporations could cite a religious objection to any government action — such as, for example, a non-discrimination ordinance — and use those beliefs as a legal defense to infringe on the rights of non-religious third parties. That could include, for example, same-sex patrons looking to buy a cake for their wedding.
While supporters insisted the measure mirrored a bipartisan federal law that had been on the books for decades, Indiana’s RFRA actually differs in several respects and could be applied more broadly to discrimination disputes between private parties. Additionally, while much of the criticism has centered on the harm Indiana’s RFRA could inflict on the LGBT community, it could also have potentially sweeping implications for any group on the wrong side of a religious belief.
“What was intended as a message of inclusion, inclusion of all religious beliefs, was interpreted as a message of exclusion,” Indiana House Speaker Brian Bosma, a Republican, said at a press conference Thursday. “We’ll be presenting what we believe is a very strong statement to ensure every Hoosier’s rights are protected.”
The fix — known as Senate Bill 50 — will make clear that RFRA does not authorize a provider to refuse services, facilities, the use of public accommodations, goods, employment, or housing on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service. It marks the first state-level extension of protections to LGBT people — a somewhat ironic development in the effect of a law viewed by many as discriminatory on its face.
But the fix stops short of establishing LGBT people as a protected class of citizens statewide, causing several businesses and civil liberties advocates to double down on their calls for an expansion of the state’s civil rights act.
“With these amendments, the RFRA cannot be used as a defense in some kinds of discrimination cases. That’s a major improvement,” The American Civil Liberties Union said in a statement. “But it still poses a risk that it can be used to deny rights to others, including in education, access to health care, and other aspects of people’s lives. While this is one piece of the solution, it is incomplete.”
"But it still poses a risk that it can be used to deny rights to others, including in education, access to health care, and other aspects of people’s lives. While this is one piece of the solution, it is incomplete."'
Human Rights Campaign (HRC) President Chad Griffin, whose home state of Arkansassaw its own scaled-back version of RFRA become law Thursday, offered similar criticism of the Indiana fix, saying that it failed to explicitly ensure the RFRA wouldn’t be used to undermine the full scope of Indiana's existing non-discrimination laws. Indiana has no statewide protections for its LGBT citizens, but the City of Bloomington, the City of Evansville, the City of Indianapolis, Marion County, Monroe County and the City of South Bend all have local ordinances barring discrimination in employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity.
“Though this legislation is certainly a step back from the cliff, this fight is not over until every person in Indiana is fully equal under the law,” Griffin said. “At the federal level and in all 50 states, the time has come in this country for comprehensive legal non-discrimination protections for LGBT people that cannot be undermined."
As of Thursday, more than 70 tech leaders had signed onto a letter urging state legislatures add protections based on sexual orientation and gender identity to their civil rights laws — something that nearly 30 states have yet to do. Google is currently not one of the letter’s signatories. But in an exclusive statement to HRC, the tech company spoke out against anti-LGBT legislation pending in dozens of states across the country. Google’s statement seemed to approve of Indiana’s fix, saying the company was “pleased that there are now concrete moves to clarify the intent of these laws in various U.S. States.”
Other RFRA critics offered similar statements of support for the pending clarification. Indiana University said it was “grateful for the hard work and good intentions of those who have earnestly labored in recent days to address this problem.” And the Indiana Chamber of Commerce, which had condemned the RFRA, said it also welcomed the proposed amendment.
“We believe this effort begins to help re-establish Indiana’s identity as a welcoming place and will go a long way toward reversing the tide of negative sentiments that has threatened our state’s economy,” said Kevin Brinegar, president and CEO of the Indiana Chamber, in a statement. “We encourage the General Assembly to pass this legislation in a bipartisan fashion today to show the nation that Indiana is united in sending the message that our state is a hospitable one which does not discriminate.”
Another showing of support for the fix came from the NCAA, which had previously expressed concerns about the RFRA and how it would affect the upcoming Final Four, set to take place in Indianapolis.
"Our position is that this ‘fix’ is insufficient. There was not a repeal of RFRA and no end to discrimination of homosexuals in Indiana."'
"We are very pleased the Indiana legislature is taking action to amend Senate Bill 101 so that it is clear individuals cannot be discriminated against,” said Mark Emmert, NCAA president, in a statement. “NCAA core values call for an environment that is inclusive and non-discriminatory for our student-athletes, membership, fans, staff and their families. We look forward to the amended bill being passed quickly and signed into law expeditiously by the governor."
Meanwhile, social conservative groups that supported the original RFRA were critical of Indiana lawmakers Thursday for trying to water down the law. Speaking to reporters at an impromptu news conference, Eric Miller, whose group Advance America helped pass Indiana’s RFRA, defended the original law and said he opposed the proposed fix.
“Nobody should be forced to violate their sincerely held religious beliefs by forcing them to choose between providing a service as part of a ceremony that they disagree with or being taken to task by the government and maybe fined,” Miller said. “They shouldn't be forced to do that.”