As expected, Indiana Gov. Mike Pence (R) signed into law the so-called “Religious Freedom Restoration Act” (RFRA) Thursday morning in a private ceremony. Proponents of this bill had openly admitted that its intent was to enable businesses to discriminate against same-sex couples, but Pence dismissed those claims in a statement he issued about the bill.
“This bill is not about discrimination,” he said, “and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”
Pence’s claim is misleading, however, given the bill was written differently from other RFRAs in a way that seems designed to enable discrimination. The bill specifically states that individuals who feel their religion has been burdened can find legal protection in the bill “regardless of whether the state or any other governmental entity is a party to the proceeding.” In fact, it is this very exception that makes Indiana’s RFRA, along with those newly proposed in several other states, a significant concern for the LGBT community.
The hypothetical scenario has already played out in other states. A same-sex couple approaches a wedding vendor to order something for their ceremony, the vendor refuses — claiming a religious belief against same-sex marriage, and then the couple files a complaint that the vendor has discriminated against them based on their sexual orientation. So far, the couples have won these cases at every turn, but none of them have played out in a state with a RFRA like the one that is now law in Indiana.
New Mexico has had a RFRA since 2000, but it only applies to burdens from government agencies. Thus, it didn’t have any impact when the state Supreme Court unanimously ruled against photographer Elaine Huguenin for refusing to photograph a same-sex couple’s commitment ceremony. Huguenin certainly tried to invoke the state’s RFRA, but the Court concluded that it was “inapplicable to disputes in which a government agency is not a party.” A law like Indiana’s, which explicitly states the government does not have to be party to the case, could have had a very different impact on the case.
The potential role of a RFRA in a discrimination case also came up in a recent decision against an Oregon bakery that refused a wedding cake to a same-sex couple. Oregon has no state RFRA, but bakery owners Aaron and Melissa Klein argued they were protected under the federal RFRA, seeking the same kind of exemption Hobby Lobby found from the Supreme Court. Administrative Law Judge Alan McCullough dismissed the argument solely on the grounds that the federal RFRA does not apply to states, but the precedent of last year’s Hobby Lobby decision does raise new questions about what protections businesses can seek under state RFRAs as well.
Though Indiana has no statewide law protecting LGBT people from discrimination, several counties and cities do, including Bloomington, Indianapolis, Evansville, and South Bend. The state also has marriage equality, so these protections could very well be put to the test if wedding vendors rely on the new law to justify discrimination against same-sex couples.
Prior to Pence’s signing of the bill, several groups threatened to pull their conventions from the state if he did so, endangering sizable revenue for the state. Among them were the Disciples of Christ, an LGBT-friendly denomination, and Gen Con, a huge gaming convention in Indianapolis that has an estimated $50 million impact annually.