Sen. Holdman has caused a bill to be prepared that will evidently be introduced as SB 100 (available at the moment through the Senate Republicans) concerning sexual orientation, gender identity, and religious freedom. (I don’t necessarily agree with the rhetorical frame implied by the term “religious freedom” — since one person’s freedom can often be another person’s burden. It’s a loaded term. For an alternate example, lets say one person is proclaiming the virtues of the freedom to travel without restriction while another person bemoans the necessary infringement on their property rights. But, I’ll go with religious freedom for now.) As I see it, the proposed legislation does the following:
1. Repeals IC 22-2-16-4. This chapter (IC 22-2-16) generally prohibited local government from imposing on employers within its jurisdiction an obligation to provide benefits, terms of employment, working conditions, or attendance policies that were not required by the State or Federal governments. However, the provision specifically allowed local government to adopt civil rights ordinances that imposed obligations consistent with IC 22-9-1-12.1 and IC 22-9-1-2. This bill would repeal the provision granting local government such discretion on civil rights issues and, additionally, limits the authority of local government to create human relations ordinances, civil rights ordinances, or fair housing ordinances that are more stringent or encompassing than the state’s. Such ordinances must also be modified to protect people (including employers and property owners) from unfounded charges of discrimination and provide protections for the rights of individuals “to religious belief and conscience.”
2. Includes what amounts to a non-severability clause which specifies (or attempts to specify) that amendments to IC 22-9-1 (civil rights enforcement) or IC 22-9.5 (fair housing) (and the repeal of IC 22-2-16-4) by this bill are all void if any of the additions, amendments, or repeal by this bill are deemed void. (I actually had trouble parsing the language in this section to make it line up quite right, but I’m reasonably certain that’s the intent. The parsing may be a failure on my part, however, I did go so far as to try to write it out as an if/then statement in a computer program.)
3. There is a section that provides exemptions to the obligation of religious concerns to observe the equal rights provisions concerning gender identity and sexual orientation and prohibits “discriminatory action” against the religious concerns for actions consistent with that exemption. That section defines “discriminatory action” as, I shit you not, “any action taken by the state or a political subdivision.” Now, the language in the definition does go on to talk about some things that are included under that umbrella – but when you use “including” in a statute, that does not define the outer bounds of the thing you are defining. By definition, “including” is nonexhaustive. Included in “any action” is negatively altering tax treatment; disallowing a deduction, withholding or reducing grants, and withholding licensure or accreditation.
4. It defines “religious affiliated organization” very broadly. It can be, among other things, a nonprofit organization (e.g. daycare facility) controlled in conjunction with a religious organization or a nondenominational educational organization that is independent of any religious organization if it is predominantly organized to “encourage students to incorporate a religious point of view in the academic and practical activities” These religious affiliated organizations as well as more directly religious organizations and their rabbis, priests, preachers, ministers, pastors, or designees are exempt from the provisions of the civil rights statute and the fair housing statute. (Imams are covered by this exemption, but the decision not to specify them by name is somewhat notable.)
5. It declares as against public policy, any action taken inconsistent with RFRA (IC 34-13-9) by state or local government against – among others – a religious affiliated organization “on the basis that the person believes or sincerely acts in accordance with a religious belief or matters of conscience regarding marriage.” Among other things, this prohibits the state or local government from taking “discriminatory action” (which, recall, is defined above as “any action”) against a religious affiliated organization that provides social services if the organization acts or intends to act upon a sincerely held religiosu belief.
6. For persons (presumably businesses) with fewer than four full-time employees, acts and omissions related to providing goods, services, and accommodations for various marriage related events (including the ceremony itself or social events related to the marriage) are exempt from the provisions of the civil rights chapter concerning sexual orientation or gender identity.
7. The chapter permits separate restrooms, shower facilities, dressing facilities based on sex, sexual orientation, or gender identity. The attorney general will defend charter schools, public schools, local governments (and the State) against lawsuits based on allegations that their policies with respect to restrooms, shower facilities, and dressing facilities are discriminatory.
8. Adds sexual orientation, gender identity, active duty status, and veteran status as protected classes along with race, religion, color, sex, disability, national origin, and ancestry under the state’s civil rights statute addressing equal opportunity with respect to education, employment, and public accommodations as well as under the Fair Housing chapter.
9. It imposes a burden of proof of sorts on gender identity claims. You have to have medical proof consistent with your asserted gender-identity within the past 12 months and/or a consistent and uniform assertion of the “gender-related identity” for the past 12 months. Sexual orientation is simply defined as “actual or perceived bisexuality, heterosexuality, or homosexuality.”
10. It permits the Indiana Civil Rights Commission to impose a $1,000 penalty against a person who files a Civil Rights or Fair Housing complaint that the ICRC deems frivolous and intended to harm the subject of the complaint.
11. The current civil rights statute requires that state and local contracts include a non-discrimination provision that prohibits discrimination based on, among other things, religion. This bill would amend that to require that the non-discrimination contract provision, when made with a religious or religious affiliated organization contain a clause permitting a preference for employees of a particular religion and permitting a requirement that all employees conform with the religious tenets of the organization “to the extent permitted under Executive Order 13279 or Title VII of the federal Civil Rights Act[.]”
12. Prohibits the state or local government from refusing to issue a permit, revoking a permit, or otherwise imposing disciplinary action on the holder of a permit “based solely on a person’s lawful expression or lawful activity regarding marriage, sexual orientation, or gender identity or the lawful expression or lawful activity of the person’s employees, owners, or agents (if any) regarding marriage, sexual orientation, or gender identity.”
An item to keep in mind is that, under the terms of last year’s RFRA, specifically IC 34-13-9-2, a statute cannot be construed as exempt from RFRA unless the statute specifically cites an exemption under IC 34-13-9. This statute does not cite any such exemption for the gender identity and sexual orientation civil rights protections added under IC 22-2 and 22-9.5. I don’t think that’s a problem because of the “fix” (section 0.7) that says IC 34-13-9 does not authorize “a provider” to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public. “Provider” is defined as basically anyone other than a church, nonprofit religious organization (including an affiliated school) and their rabbis, priests, ministers, and pastors. However, when you have two statutes that aren’t exactly parallel, there tend to be gaps around the edges. To the extent there are any such gaps, RFRA would take priority.
I’m really interested to see some discussion on this, because I’m not sure if ordinary people will be able to understand it. This law may mean whatever oracle one decides to use, which seems to be part of the legislative tradition to pass the law and let the courts decide what it means and to let people battle it out. In any case, I see it as the legislature’s way to give something to everyone, but I think it was Kennedy who said that when you ride the tiger, you may end up inside. If businesses think this is just another way to discriminate against LGBT in some subtle ways, that little compromise won’t fly for long.
Doug Masson says
Structurally, I think it’s a bit of a mess. Symbolically, I think it balances the scales in favor of the religious interests. Practically, I think it’s something of a crapshoot — part of that is because I don’t know where and how most of the discrimination is coming from (let alone if or how it would change if this legislation was passed.)
Im ready to lead the pitchfork parade against this Shit Storm
Michael Wallack says
Not particularly meaningful, but I find it interesting that the list of clergy again excludes Muslim imams. Things that make you say, “Hmmm.”
Now Hoosier47906…….it’s just Day One……..
I love how state legislators bemoan the federal government taking away states rights… while at the same time, just about every session they’re busy taking away local rights.
The bill seems deliberately written to make it impossible for the average Hoosier to understand. I’d like to see how many legislators could explain everything in the bill.
Doug Masson says
Modest proposal – 12 month look-back period for conduct consistent with religious belief that tracks the requirement for gender-identity.
Thought of that as well. Who sets on that commission to decide if you’ve sufficiently Christianized, etc.
Doug Masson says
Another side issue is whether the ICRC is equipped to handle extra responsibilities. Their processing speed is glacial (pdf).
This may be the most insulting “rights” bill ever written. On the whole, LGBT citizens in Indiana would be better off with the patchwork of local laws than with this. I can’t see anybody liking this bill. The “religious freedom” crowd is already going ballistic. Then again, Indiana also has told Syrian refugees to shove it, so why expect anything more than the Hoosier Hostility this state’s government — and many of its citizens — have heartily endorsed?
Can you reference the locations where you’re seeing the religious right go ballistic? I’d like to see their arguments. I am on the other side – can’t believe they thought this would fly.
Don Sherfick says
Doug, I confess I have yet to wade through the bill, but am under the impression that there are a number of areas where religious objections can exempt one from the sexual orientation/gender identity provisions but not the other current protected classes. Would not such treatment violate equal protection principles unless there were at least some rational basis for making the distinction…. thereby making it unconstitutional? (Federal not Indiana constitution…..I know the latter has one of the lowest bars in the nation) What would be such a rational basis for, say, distinguishing religious discrimination from that related to sexual orientation/gender identity? Because somehow matters of piety are “obviously” of a higher order than that concerning “THOSE people”?
but of course, when you explicitly state that if one part of the bill is found unconstitutional then the whole thing is *poof* gone – severability – you pretty much doom it, don’t you? I mean, if the LGBT community liked it, they’d have to suck it up and like all of it…regardless of how it singles them out over and over for different treatment than the other categories. It’s especially aggregious that they used this chance to vitiate local ordinances, take away what little home rule was left in law in Indiana, gave the AG the responsibility to defend FOR-PROFIT charter schools, and even gave religious preference opportunities to all religious based contractors (adoption, pregnancy counseling and the like)to hire ONLY their own kind. #HoosierHospitality takes another hit.
Steve Smith says
When in doubt, obfuscate.
Mary Strinka says
So, if Catholic Charities decides to defy the governor’s edict, and continues to actively solicit refugee placement within Indiana, and their reason is religious conscience, this bill would prohibit the state from taking action against them, right?
Matt Stone says
Not a lawyer but couldn’t a Catholic charity being forced to stop an activity by a governmental entity take them to court and use RFRA as a defense?
Some Supreme Court decisions refer to what you are talking about as the “sliding scale.” Because there is a lack of national consensus, a small amount of discrimination is tolerated.
We fought a civil war over racial discrimination, for example, therefore racial discrimination is strongly prohibited. On the other hand, the Equal Rights Amendment never passed, therefore some sexual discrimination, like job opportunities in the military, is OK.