Indiana Republican Gov. Mike Pence is digging in his heels over the intent and effect of his state’s controversial Religious Freedom Restoration Act (RFRA). Pence reiterated his position Tuesday that the law “does not give anyone a license to discriminate,” and that he wanted a legislative clarification stating that it would not give businesses the right to deny services to LGBT people or to anyone else.
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Pence blamed the national media’s “reckless reporting” for creating widespread misunderstanding, confusion and mischaracterization about the law. But it’s hard to ignore certain facts that poke holes in the governor’s assertions -- for example, the fact that he was surrounded by three prominent anti-gay activists when he signed the RFRA into law last week.
Indeed, Pence and other religious freedom supporters in the state are responsible for creating a fair amount of mischaracterizations about the law themselves. Here are three big myths about Indiana’s RFRA, debunked:
It’s just like the federal law that passed with bipartisan support
A common refrain heard among RFRA supporters is that Indiana’s law was modeled off of a federal version passed in the early 1990s. But Indiana’s RFRA differs in some important respects. For starters, legal experts say that Indiana’s law is actually more sweeping than the federal version in that it can be used as a claim or defense between private parties, regardless of whether a state or governmental entity is involved. That means that people (defined very broadly in the law) can use their religious beliefs as a legal defense if they’re sued for discrimination by another individual.
Furthermore, while the federal RFRA passed with support from notable liberals -- including Sen. Chuck Schumer and the late Sen. Ted Kennedy -- and was signed into law by President Bill Clinton, the bipartisan coalition behind that law has since collapsed. Numerous federal court opinions -- including, most notably, the Supreme Court’s Hobby Lobby decision -- have understood RFRA to be much broader than any of the original architects intended, causing many of the more liberal backers to withdraw support. The federal law was designed to protect Native Americans who wanted to smoke peyote in line with their religious beliefs without getting fired, or Muslim inmates who wanted to maintain closely trimmed beards. It was not intended to infringe on the rights of non-religious third parties, like same-sex customers being refused service from a bakery, or Hobby Lobby employees being denied contraception coverage as mandated under the Affordable Care Act.
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So even if Indiana’s RFRA mirrored the federal version word for word (which it doesn’t) it could still prove to “have significant problems,” Sarah Warbelow, legal director for the Human Rights Campaign, told reporters on a press call.
In a Facebook post Tuesday, Sen. Schumer cut down comparisons between Indiana’s RFRA and the federal law he worked to pass.
“First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest,” Schumer wrote. “If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.”
“Second,” he continued, “the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.”
It’s just like laws that exist in 19 other states
In addition to the fact that Indiana’s is the only RFRA that applies to disputes between private citizens, it’s also the first of its kind that explicitly recognizes corporations as religious, à la Hobby Lobby, Inc. Under Section 7 of Indiana’s RFRA, a “person” -- whose religious beliefs may not be substantially burdened by a governmental action without a compelling state interest and in the least restrictive means -- is defined as follows:
An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
In short, that’s a lot of “people” who can claim a religious objection to, say, a non-discrimination ordinance that protects LGBT people. 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. It’s those ordinances that could be undermined by RFRA.
President Obama even supported a RFRA in Illinois when he was a state senator
This one isn’t exactly a myth -- President Obama did vote for Illinois’s RFRA as a state senator in 1998. However, a lot has changed in the last 17 years, and it is a myth to say that Obama’s vote for the Illinois RFRA is the same thing as a vote for Indiana’s. When then-state Sen. Obama voted for Illinois’s law, it was very early in the adoption period of state RFRAs when the measure was still understood as a protection for religious minorities against government action. The use and language of these measures, however, has since changed considerably and is now viewed as the main counterforce to the LGBT equality movement.
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Additionally, Illinois has state-wide employment protections for its LGBT citizens, while its neighbor Indiana does not. Those protections were added in 2005 after Obama supported his state's RFRA. But as Robin Fretwell Wilson, a professor at the University of Illinois College of Law, recently told Politifact: “To say, ‘We did what Illinois did,’ without acknowledging the fact that Illinois gave protections, really misses the real debate.”