“We’ve got a perception problem,” Indiana Gov. Mike Pence said of his state’s new Religious Freedom Restoration Act in an April press conference.
Indeed.
The problem Pence is referring to is the widespread idea that Indiana’s RFRA gives the state’s businesses the right to discriminate against LGBTQ people—a misconception, according to Pence, as “this law does not give businesses a right to deny services to anyone.”
Except that, well, it does.
Indiana’s RFRA shares the name of a 1993 federal law, as well as similar laws passed in 19 states. As such, defenders of Indiana’s law have claimed that this new RFRA would simply mimic existing federal and state law.
This defense is troubling in two respects: firstly, it implies that as long as enough people are discriminating, the discrimination is no longer a problem; and secondly, it is factually incorrect.
Indiana’s RFRA has two major differences from other RFRAs. For one, it explicitly allows businesses to claim the right of “the free exercise of religion,” unlike the federal law and any state versions other than South Carolina’s.
This phrase gives for-profit businesses the same free exercise rights as individuals, a concept that seemed odd before last year’s Burwell v. Hobby Lobby Stores.
Having established a corporation’s rights, the more sinister part of Indiana’s law is as follows: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any governmental entity is a party to the proceeding.”
This language is legalese for the idea that a business’s right to free exercise of religion can be invoked as a defense in a private lawsuit, not just against charges brought by the government. In other words, if a gay couple sues, for example, a baker who refused to make them a wedding cake, the baker can invoke the RFRA in his defense.
The backlash against Indiana’s RFRA led Pence and the state’s GOP to add language that explicitly forbids discrimination on the basis of, among other things, sexual orientation and gender identity. This change is obviously a positive step, but the RFRA also retains its original language, and the fact remains that Indiana just tried to codify discrimination on the grounds of religious freedom.
America is exceptional, at least in the strictly denotative sense of it being an exception: founded on a libertarian ethos, it has always protected individual freedoms and rights. As such, religious freedom is incredibly important, and we shouldn’t take it away from business owners.
But there’s a difference between having the right to exercise your religion in peace and discriminating against marginalized people.