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After Indiana is a compromise visible?

SCOTT PIEPHO
Cases and Controversies

Published: April 24, 2015

After Indiana Gov. Mike Pence signed into law changes to the state’s newly passed religious freedom law the recriminations from supporters of rights for LGBT people gave way to recriminations from conservatives over the state’s retreat. This episode represents the latest skirmish in the broader struggle over equal rights for gay people versus the freedom of conscience for their religious opponents. While it is too early to tell, the Indiana experience may have moved us toward some real compromise between those two values.

Gov. Pence signed the original law in early April in a private ceremony, surrounded by clergy and lobbyists all of whom have made opposition to marriage equality a central focus of their work. He then spoke to the media, touting the bipartisan bona fides of the Federal Religious Freedom Restoration Act on which he argued that the Indiana law was patterned. The Federal RFRA was “passed by overwhelming bipartisan majorities . . . it was signed by President Clinton, it was co-authored by Nancy Pelosi, Ted Kennedy,” he noted.

He also insisted that the law did not authorize discrimination and that “If I thought it was about discrimination I would have vetoed it. In fact it doesn’t apply to disputes between private individuals unless government action is involved.”

Indiana became an instant pariah as a result. Businesses criticized the law and some threatened to cancel planned investments. Indianapolis’s hosting of the Final Four wasn’t placed in serious jeopardy, but enough voices called for moving it to call into question whether the state would lose the chance to host future major events.

In response the legislature passed and the governor signed a fix, clarifying that the law does not authorize discrimination based on a number of characteristics. Those characteristics include the usual suspect classifications like race and religion, but also specified sexual orientation – the first such specification in Indiana state law. The new law does not prohibit discrimination based on orientation, but that mention remains significant.

In arguing against the quick fix, opponents of marriage equality echoed Pence’s original position that the law as initially passed was simply a reiteration of the federal RFRA. But Indiana went further than simply following the lead of the federal government and a passel of other states in passing their law.

For one thing, the law was passed after the Supreme Court’s Hobby Lobby decision. At the time that Congress passed RFRA – indeed up until the Supreme Court’s decision – corporations had no right to freely exercise their religion. Indeed, writing about a corporation exercising religion just sounds weird. Moreover, as pointed out by Garrett Epps writing in The Atlantic, the provisions of the Indiana law differ from Federal RFRA in significant ways, including specifically extend its provisions to corporations, codifying the Hobby Lobby decision.

Hobby Lobby makes RFRA far more amenable to the claim that it creates a religious-based exemption to anti-discrimination laws. Those laws implicated businesses and other organizations, which is to say corporations rather than individuals. Before Hobby Lobby if a plaintiff sued a business for discrimination, it would have been nearly impossible to defend it on the basis of an individual’s religious liberty.

In addition to all that, the context in which Indiana passed the law makes it something different. The law was one of dozens passed or contemplated in response to the general movement toward nationwide marriage equality.

Like many such laws, Indiana’s was largely symbolic. Since the state has no law extending protections against discrimination to LGBT people, the only possible effect would have been exempting businesses and individuals from local antidiscrimination ordinances in cities that have them. As such, the capitulation of the legislature and governor was also symbolic. Indiana may not prohibit discrimination based on sexual orientation, but they are sensitive to charges that they endorse it.

The cries of supporters of a law like Indiana’s amount to “we are really upset that their symbolic politics beat our symbolic politics. That’s not nothing. Symbolism in politics matters, and in this case the forces in favor of marriage equality at least won the round on that basis.

That said, I find the whole episode surprisingly satisfying. I am hopeful that we can find a way to protect sincerely held religious beliefs without granting special privilege to a particular kind of prejudice. I would like to find a way to grant not just equal rights but also equal dignity to people who love differently without trampling the rights of those who dissent.

For all the symbolic posturing, the ultimate accommodation in Indiana suggests where that compromise may be struck. The law needs to find place where providing employment or public accommodation rises to the level of tacit endorsement. At that place the argument can best be made that being compelled to serve rises to the level of a meaningful infringement on religious liberty and a religious exemption is therefore appropriate.

Because the law will not (and probably cannot) litigate whether a perceived slight to religious exercise offends a sincerely held belief, that line must be crafted by the legislature. And as so often happens, those legislatures will almost certainly draw that line somewhat arbitrarily. The result will not satisfy everyone, but reconciling such diametrically opposed rights will necessarily involve some compromise.


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