Legislators in Indiana have proposed a fix to their controversial “religious freedom” bill (RFRA), and it’s certainly a step forward for LGBT rights. The amendment, which still awaits approval from Governor Mike Pence, would prevent small businesses from using the RFRA to discriminate in many ways.
But it doesn’t go far enough.The new provision covers housing, employment and public accommodations from being trumped by RFRA. But it leaves out other, equally important categories like education and health care, and it leaves large loopholes for what it defines as “religious organizations.” The definition’s so broad that it appears religiously affiliated hospitals could qualify, and invoke RFRA as a defense for discrimination.
It also doesn’t remedy the flaws present in the original bill. For-profit corporations could still be allowed to trump state laws in the name of religion.
For many critics, including Americans United, discrimination fears therefore remain. That’s partially due to statements made by Indiana business owners indicating that they fully intend to refuse service to LGBT people.
The owners of Memories Pizza, a small pizza parlor in Walkerton, Ind., told ABC 57 that they’d use the law to refuse to cater a same-sex wedding. “That lifestyle is something they choose. I choose to be heterosexual,” Kevin O’Connor said. “They choose to be homosexual. Why should I be beat over the head to go along with something they choose?” (Memories Pizza has since announced they’re temporarily closed due to a barrage of angry Yelp reviews.)Another man claiming to be a restaurant owner, who identified himself only as Ryan, told a local radio station that he supported the law because he already regularly discriminated against customers he perceived to be LGBT.
But the bill’s supporters vehemently insisted that it had nothing to do with discrimination. As reported by ThinkProgress, Andrew Walker, who heads policy studies at the Southern Baptist Convention’s Ethics and Religious Liberty Commission (ERLC), argued that the bill really prevented discrimination—against religious business owners.
“A wedding vendor who chooses not to service a same-sex wedding is not discriminating against a person’s being,” he wrote. “To require a wedding vendor to service a same-sex wedding is not eliminating discrimination against the gay couple. It’s coercing the wedding vendor.”
That argument didn’t impress LGBT rights advocates. It also didn’t persuade corporate leaders. The CEO of California-based Salesforce announced that the tech company would cease all “non-essential” travel to the state, and the Disciples of Christ, a Christian denomination, said they’d pull their annual conference from Indianapolis in response to the bill. Indianapolis-based Angie’s List cancelled a planned expansion in the state, and artists, including the band Wilco, cancelled performances.
And thus, Pence and his allies in the legislature backtracked. Let’s be clear: They were not moved by some sudden epiphany that their bill would harm the state’s LGBT community. They were moved by money, and the possible lack of it.
The result, at least, is a fix that greatly restricts the harm originally posed by the RFRA. And the bill’s supporters are less than pleased by it. The American Family Association’s Micah Clark, who attended Pence’s private RFRA signing, begged the governor not to accept any sort of fix, saying, “That could totally destroy this bill.” The Southern Baptist Convention’s Ethics and Religious Liberty Commission’s Russell Moore also took to Twitter to express his dissatisfaction with the planned fix.Meanwhile, a similar debate rages in Arkansas, as legislators scramble to save their RFRA from an unexpected demise. Gov. Asa Hutchinson announced yesterday that he would not sign the RFRA as passed by the legislature, and would only sign a RFRA that precisely mirrored the existing federal version. That’s likely because Walmart, one of the state’s biggest employers, came out against the original bill.
But Hutchinson’s solution doesn’t solve much either. The U.S. Supreme Court radically redefined the federal RFRA in its Hobby Lobby v. Burwell ruling last year. The bill, which Americans United supported when it passed in 1993, is now interpreted much more broadly than it previously had been, and the troubling state-level RFRAs proposed in Arkansas and Indiana owe their existence to the Supreme Court’s act.
An Arkansas RFRA that mimics the federal version could therefore still be used to justify discrimination, and that’s a profound concern for advocates of the separation of church and state.
One unequivocal fact has emerged this week: These bills really are about discrimination. If they really were just about religious freedom, and not about undermining non-discrimination provisions for LGBT people, the bill’s supporters would have no objections to fixes like the one proposed in Indiana.
Yet they still rage. We thank them for tipping their hand to the entire country, and we have a message: We understand what you’re trying to do. We know that your goal is not actually to protect religious freedom but to undermine the long overdue march of LGBT rights.
That goal is at odds with the wishes of the American people, it is at odds with the Constitution, and it is at odds with history. It will not succeed.