POLITICS

What the 'religious freedom' law really means for Indiana

Stephanie Wang
stephanie.wang@indystar.com

Could Indiana's new "religious freedom" law really allow restaurants to deny service to customers who are gay?

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

Could 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 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.

All of which raises a larger question. Which really matters most: What the religious freedom law will actually legally enable; what people think it means; or what the intent is behind the law?

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.

And, yes, 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.

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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.

Shortly after signing the religious freedom act into law Thursday in a private ceremony, Republican Gov. Mike Pence repeatedly said at a news conference that state-level RFRA laws around the country have never been used to undermine local nondiscrimination 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 law professor who opposes the law.

But Daniel Conkle, an IU 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."

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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.

Consider Illinois, our neighboring state that also has a RFRA.

Illinois' RFRA was approved in 1998. But Illinois also passed a same-sex marriage law in 2013 that codifies equal status and protection for couples and their families.

Illinois' Religious Freedom and Marriage Fairness Act at the same time preserved religious rights by explicitly saying religious officials would not be required to solemnize any marriages that went against their beliefs, nor would religious facilities be required to hold such marriage ceremonies.

"What we want," said Wilson, who suggested those religious exemptions to the law, "is people to be able to go forward in society, especially when there is a great social change like marriage, just to know how they're going to live together in peace."

"With a RFRA," she explained, "you have to litigate all the way through to figure out if you've won. People don't have clarity until after the fact where their rights begin and the other guy's rights end."

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 only won by a court ruling overturning a longstanding 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.

If you're wondering why RFRA does not realistically revive fears of racial discrimination by private businesses, look no further than the U.S. Constitution, federal and state equal protection laws and lots of case precedent. But LGBT rights don't have such broad and explicit protections.

In the few Hoosier cities with nondiscrimination laws, legal experts predict protecting LGBT rights will stand as a compelling government interest.

But for the state as a whole, is it a compelling interest? Or, in the state of Indiana in 2015 and beyond, will protecting LGBT rights be seen as violating someone else's religious rights?

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

"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."

She added: "As LGBT people gain greater legal rights, we will continue to see attempts to erode those gains through laws like RFRA."

"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.

He added: "I don't think it applies to all the settings our supporters thought. I know it won't be invoked in a tenth of the scenarios our opponents articulated."

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?

Because then 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.

Call Star reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.

States with Religious Freedom Restoration Acts

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 non-discrimination 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.

Source: American Civil Liberties Union