What the ‘religious freedom’ law really means for Indiana

What if a healthcare professional’s personal “moral compass” points to anyone taking a opiate is a “addict” and addiction is morally wrong – a sin – and cannot treat/provide services/products to a person.. under this law.. will it now be legal ?

INDIANAPOLIS — Will Indiana’s new religious freedom law really allow restaurants to deny service to customers who are gay?

Was the law necessary to protect pastors from being forced into performing same-sex weddings?

Will it provide a legal rationale for Christian bakeries to refuse to make a cake for a same-sex couple’s wedding?

The problem with these questions is that the answers depend on whom you ask — especially among those most emotionally invested, but even within the legal community. And, now, with Indiana Republican Gov. Mike Pence’s announcement Saturday that he will seek further legislation to “clarify” the act, it could become even more complicated.

The argument over what Pence has thus signed becomes not only intellectual, but visceral, vitriolic, ugly. Both sides dig in, because each thinks the other is flatly wrong — in their hearts, and on the facts. And the debate rages on, sometimes spiraling to a place so far away from the law itself.

Indiana’s new Religious Freedom Restoration Act, or RFRA, might actually do little as a law when it goes into effect July 1, legal experts say. It simply sets a standard by which cases involving religious objections will be judged.

The religious freedom law says the government cannot intrude on a person’s religious liberty unless it can prove a compelling interest in imposing that burden and do so in the least restrictive way.

That leaves room for interpretation. So what the law could actually accomplish, experts agree, will have to be assessed on a case-by-case basis, probably in court.

Until then, the debate — fueled by fiery rhetoric that has galvanized both sides — will remain in the court of public opinion.

LOCAL NONDISCRIMINATION LAWS

In Indiana, about a dozen cities, including Indianapolis, have local nondiscrimination laws that specifically protect gays and lesbians in employment, housing, education and public accommodation, which include business transactions. But in much of Indiana there is no such protection.

The concern among opponents of the law is that it could embolden people to challenge those local laws.

It’s true that the use of state-level RFRA laws has never — yet — successfully trumped local nondiscrimination laws. But it’s also true that they have been invoked in several attempts to do so.

And the situation is such in Indiana — with no state law protecting gays and lesbians, but local ones that do, and now a state RFRA — that it’s difficult to find an analogous case to explain what would happen here.

Consider this case from Washington state.

A florist, citing her relationship with Jesus Christ, refused to sell flowers for a gay couple’s wedding. A court recently ruled, even when weighing her religious convictions, that she violated local nondiscrimination laws. News reports say she turned down a settlement offer and continues to appeal her case.

The florist declined to arrange the flowers, and so in some sense this confirms the fears of religious freedom law opponents that a door has been opened to discrimination. But she lost in court, and so this backs the supporters who say RFRA doesn’t usurp local nondiscrimination laws.

But Washington is not Indiana. Washington doesn’t have a RFRA. But, also unlike Indiana, it has a statewide nondiscrimination law that covers sexual orientation.

So what would happen if a similar religious claim over same-sex weddings is made in Indiana? It’s hard to say.

“The law gives individuals and businesses the right to file litigation and go to the courts to decide whether or not their religious claims are justified,” said Robert Katz, an Indiana University-Indianapolis law professor who opposes the law.

But Daniel Conkle, an Indiana University-Bloomington law professor who supports the law, says so far no court has recognized a religious claim in that particular type of situation. But, he said, “Doesn’t mean it couldn’t happen.”

FOCUS ON LGBT RIGHTS

Some supportive legal scholars are frustrated that Indiana’s RFRA debate has become so entangled with politics that it solely centers on potential conflict with LGBT rights.

“It’s not right to see RFRA as a response or a reaction to what’s happening with sexual orientation discrimination or marriage,” said University of Notre Dame law professor Richard Garnett, who supports the law. “It is bigger than that.”

Most successful RFRA cases, he said, involve winning ways for underrepresented minority religions to freely exercise their beliefs around laws that were probably created without considering their faiths.

For example, in Minnesota, a state law would have required Amish buggies to use bright fluorescent signs to be seen on the roads. Applying the concepts of RFRA, a court decided public safety represented a compelling interest, but that could be accomplished with a less restrictive means of burdening the Amish faith of a simple lifestyle. The compromise: silver reflective tape and kerosene lanterns.

“What’s kind of gone south with the RFRAs,” said University of Illinois law professor Robin Fretwell Wilson, who also supports the law, “is the RFRAs are really trying to do real work for religious minorities. But they’ve been glommed onto by religious believers who are freaked out by same-sex marriage right now. They’re latching onto a vehicle that is just not designed to do what they want it to do, at a time of great social change.”

But with Indiana not having a statewide nondiscrimination law that protects sexual orientation and gender identity, the RFRA issue has become tightly intertwined with LGBT issues.

That’s what makes Indiana’s RFRA distinct from the federal law and versions in 19 other states.

During RFRA discussions in Indiana, state Republican leaders have dismissed statewide class protection for sexual orientation or gender identity. In most cities, there are no local laws that require equal treatment of gay people. That means discrimination on the basis of sexual orientation has never been expressly prohibited in most of Indiana.

After exposing the gap in LGBT protections and the political unwillingness to close it, Indiana’s RFRA debate begins for some to look like a pre-emptive move to block social currents. And therein lies the questions over intent.

Indiana is just one year removed from a battle to block marriage equality, and where the right for same-sex couples to marry was won only by a court ruling overturning a long-standing ban.

It is telling to opponents of the religious freedom act that the law was driven mostly by the same conservative Christians who lost their fights against marriage equality. It’s also telling, opponents say, that one of the law’s primary sponsors, Republican state Sen. Scott Schneider, has touted the notion — which will be an issue for the court to settle — that Indiana’s RFRA could exempt Christian businesses from having to provide wedding services to gay couples.

To some, that sounds like legalized discrimination. To others, it’s protecting religious rights.

‘SOME HYPERBOLE ON BOTH SIDES’

The uproar over the religious freedom law slices lines further through Indiana at a time when the spotlight is hot on the state.

“There’s some hyperbole on both sides,” said Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union, “but it’s a genuine fear.”

“You look at something and you project onto it your feelings and, in some cases, fears,” said Curt Smith, president of the Indiana Family Institute.

In Arizona last year, the discourse became so polarizing that then-Gov. Jan Brewer — also a Republican — vetoed a similar religious freedom proposal.

“It could divide Arizona in ways we cannot even imagine,” she said, “and no one would ever want.”

In Indiana, fear-fueled misconceptions helped garner support for the law and pitted others so vehemently against it. The rhetorical hyperbole — perhaps more so than the law itself — has galvanized two constituencies while further dividing Indiana.

And it raises another question: Will the political maneuvering on both sides continue to obscure people’s understanding of the practical effects of the law?

If that happens, it begins to matter less what the law actually does than what people “think” it allows them to do — whether that is to openly discriminate against gay people or unfairly cast all Christians as intolerant.

Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia.

Religious freedom states that have nondiscrimination laws protecting gays, lesbians and bisexuals: Connecticut, Illinois, New Mexico, Rhode Island.

Religious freedom states with cities or towns that have nondiscrimination ordinances that include either sexual orientation and/or gender identity protections with respect to employment and public accommodation: Arizona, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Pennsylvania, South Carolina, Texas.

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