Sorry to go all RFRA, all the time here. But I wanted to address a little bit further the issue of how the RFRA discussion came to be focused on gay rights. My sense of the actual text of the law is that it does not particularly target gay rights or, for the most part, let people infringe upon such rights based on religion. I can see it coming up in the context of a local human rights ordinance that protects against discrimination based on sexual orientation where the person doing the discriminating claims it’s compelled by their religion.
That said, the text of the law does not address gay rights directly and certainly similar legislation has been approved in places and by people one normally associate as being favorably inclined toward gay rights. So, why has the debate played out in Indiana the way it has?
My sense is that the social conservatives felt stung by their defeat in the marriage equality battles. They failed to get a marriage amendment to the Indiana constitution on the ballot and the federal courts have declared such measures to be contrary to the U.S. Constitution. That was when the Indiana RFRA push began. I think it was something that was substantively palatable to most of our lawmakers because it had been passed in many places and has been largely unobjectionable to most people. At the same time, it could be sold rhetorically by advocates of social conservatism as a victory against the LGBT menace threatening Christianity. Take, for example, Eric Miller of Advance America:
Indiana now becomes the 20th state with a Religious Freedom Restoration Act.
Eric Miller, the Founder and Executive Director of Advance America stated: “It is vitally important to protect religious freedom in Indiana. It’s the right thing to do. It was therefore important to pass Senate Bill 101 in 2015 in order to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs!”
Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection!
Here are just three examples where SB 101 will help:
Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
A church should not be punished because they refuse to let the church be used for a homosexual wedding!
(Holy exclamation points, Batman!). Miller isn’t just some crank off the Internet. He was given a prominent spot at the private signing ceremony by Gov. Pence. He is one of the people this legislation was designed to appease.
So, legislators are in a bit of a bind. It’s all well and good for them to say that this legislation doesn’t hurt gay rights. There is a pretty good chance they’re mostly right. But that message isn’t going to carry the day unless and until they come out and directly admit to social conservatives, “we haven’t done anything to address your concerns about gay people.” Unless that message comes across clearly, the gay community and those who support them can be excused for taking people like Miller at their word that this legislation was intended to assist guys like him retain the ability to treat gay people like second class citizens. The ability of lawmakers to communicate that message is further complicated by the fact that they had an opportunity to amend the bill in a variety of ways that would have made explicit that it was not intended to facilitate discrimination. See, for example, Sen. Lanane’s proposed amendment:
(b) This chapter does not apply to:
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.
That proposal was defeated in the Senate 10-40.
Whatever the legal effects, however, the rhetoric surrounding this legislation was never closely tethered to reality. Now that it’s law, getting the horse back in the barn by asking people to focus on what the law does in reality will be awfully tough.