Indiana religious freedom bills fraught with rhetoric

This story was originally published on Feb. 9, 2015.

Supporters of proposed religious freedom legislation in Indiana say it would protect business owners who don't want to provide services for same-sex marriages.

Opponents say it would essentially legalize discrimination against gays and lesbians.

But legal scholars and case law suggest it is unlikely to do either.

It will be up to Indiana lawmakers to sort through the rhetoric as the Senate Judiciary Committee takes up a pair of similar religious freedom bills on Monday.

Senate Bill 568, authored by Sen. Scott Schneider, R-Indianapolis, and Senate Bill 101, authored by Sen. Dennis Kruse, R-Auburn, seek to provide greater protections to people and businesses with strongly held religious beliefs.

They would prohibit state or local governments from substantially burdening a person's ability to exercise their religion — unless the government can show that it has a compelling interest and that the action is the least-restrictive means of achieving that interest.

Both are modeled on a federal law called the Religious Freedom Restoration Act, or RFRA. That law passed with bipartisan support in 1993 and was intended to provide exceptions for religious minorities when a federal law impeded their religious practices.

Since then, 19 states have adopted similar legislation.

The tone of the discussion, however, has changed dramatically since then.

Social conservatives have embraced the legislation amid angst over increasing equality for gays and lesbians. They fear business owners who oppose gay marriage for religious reasons might be forced to provide services for same-sex weddings.

In Indiana, conservative Christian groups have been rallying for the measure ever since last year's failed effort to ban same-sex marriage in Indiana's constitution and a series of court decisions over the summer and fall that effectively legalized gay marriage in Indiana.

But critics charge that such religious freedom laws are essentially a license to discriminate. They say social conservatives have flipped the law on its head, using it to discriminate against, not protect, another minority group: gays and lesbians.

In Indiana, the coalition of businesses, gay rights activists, and civil liberty advocates that successfully beat back last year's proposed gay marriage ban has been slow to react. But a diverse group of opponents is beginning to emerge, including the Indiana Chamber of Commerce, engine maker Cummins, the American Civil Liberties Union, the Jewish Community Relations Council, and Indiana Equality Action.

And the rhetoric on both sides is heating up.

"Jon Mills, a spokesman for Cummins, called the bills "bad for business."

"We believe they create potential liability for employers and harm Indiana's reputation as a business-friendly state. The bills also send a message that Indiana is an unwelcoming state that allows individuals and businesses to discriminate against others."

On the other side, conservative groups with deep ties to many Indiana churches are lobbying hard. One such group, Advance America, is making a fact sheet available to churches.

"SB 568 will help protect individuals, Christian businesses and churches from those supporting homosexual marriages," it says. "Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!"

When asked if the pending legislation would afford such protections, Schneider said it would.

But the message that groups like Advance America are peddling to their donors may not be entirely accurate, according to legal experts.

In a letter to Senate Judiciary Chairman Brent Steele, a group of 16 legal scholars from across the country — including law professors from Indiana and Notre Dame universities — write that "it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption."

In fact, only one such case has arisen in states that already have a religious freedom law. In that case, a Christian wedding photographer was sued after refusing to photograph a same-sex commitment ceremony in New Mexico. Although that state has a religious freedom law, the photographer lost.

"Courts generally believe that anti-discrimination laws serve compelling governmental interests, and nothing in the proposed legislation would change that," they wrote.

But that's not likely to ease the concerns of opponents who fear that the religious freedom legislation could undermine local human rights ordinances, such as the one in Indianapolis that protects people against discrimination in employment or public accommodation based on sexual orientation.

"The thought of potentially being exempt from all laws or ordinances is extreme," said David Sklar, director of government affairs for the Indianapolis Jewish Community Relations Council. "If someone is going to operate in the public square, they have a certain obligation to do so equitably."

Ken Falk, legal director for the American Civil Liberties Union of Indiana, summed up the feelings of many opponents this way: "You never want to have a bill that licenses discrimination, which is what this does."

But legal experts take issue with those claims, too.

"Opponents of the legislation may make unsupported claims about the extreme results that it would produce, but they have no examples of judicial decisions actually reaching such results," the group of 16 law professors wrote.

Daniel Conkle, a law professor at Indiana University who specializes in religion, was one of the letter's authors.

"There's been exaggeration on both sides about what this law would do in particular settings," he said.

Richard Garnett, a law professor at the University of Notre Dame and also an author of the letter, said it is "unfortunate that the facts about how religious-accommodations laws actually work, and what they actually do, are too often buried by inaccurate criticisms, implausible predictions, and name-calling."

Both professors say the role that judges play in religious freedom laws is being overlooked. Such laws don't say that religious objectors always win.

"Instead," Conkle said, "they tell the courts to apply what amounts to a balancing test, asking whether a law is sufficiently justified by compelling interest."

That's not the kind of nuance you're likely to find on poster boards at the Statehouse on Monday, where supporters are planning a noon rally ahead of the hearing. The Senate Judiciary Committee is scheduled to take up the issue after the Senate wraps up its 1:30 p.m. session.

Call Star reporter Tony Cook at (317) 444-6081. Follow him on Twitter: @indystartony.