Governor Mike Pence’s characterization of Indiana’s new religion law is wrong.
In the latest controversy over religious freedom and gay rights, Indiana last week became the 20e the state to adopt a Restoration of Religious Freedom Act. Many have denounced the law for inciting discrimination against gays and lesbians, and a number of organizations threatened to move events outside Indiana or limit their activities in the state.
In signing the bill, however, Gov. Mike Pence dismissed this criticism. He declared that the law âis not about discriminationâ. In a interview this weekend on ABC This week, he added that the purpose of the law was to strengthen First Amendment rights, not to discriminate. But this response indicates that the governor has either misunderstood or distorted a crucial aspect of the law he has just signed.
Defending the RFRA from his state last week, Governor Pence noted: âIf 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. In other words, the governor suggested, discrimination by one individual or company against another would not even involve the new law. But this is simply not true.
To understand why it is wrong to think that private companies cannot use the new law as a defense against civil rights claims, consider the recent case of a wedding photographer in New Mexico. Elane Photography offers wedding photography services to the public. Vanessa Willock emailed the company to inquire about the company’s availability to photograph the engagement ceremony she was planning with her partner, Misti Collinsworth. âNot homosexual ceremonies. She later explained that her opposition to taking photos of Misti and Vanessa’s big day was based on her Christian beliefs. The couple sued the photographer under the state’s anti-discrimination law, which protects gays and lesbians. Elane Photography countered that she had the right to religious freedom to refuse to serve the couple.
The New Mexico Supreme Court ruled in favor of the couple. New Mexico has an RFRA that protects against substantial charges on religious freedom. More importantly, the court ruled that the New Mexico RFRA does not not apply to private party lawsuits – this only applies when the government is a party. For this reason, the court rejected Elane Photography’s claim for religious freedom, sparking outrage from religious conservatives across the country. The Supreme Court refused to hear the case. Perhaps what followed will not surprise you.
Compare Indiana’s new RFRA to the one assessed by the New Mexico court. Indiana’s RFRA is a departure from New Mexico’s RFRA and federal RFRA, upon which many other state laws are modeled. How? ‘Or’ What? Indiana RFRA expressly provides that a person can assert a “claim or defense in legal or administrative proceedings, regardless of whether the State or any other governmental entity is a party to the proceedings.“
This new statutory language is designed to ensure that a wedding photographer in Indiana would be protected if she discriminates against a same-sex couple, unlike the New Mexico photographer who lost in court. The provision explicitly permit a private party, including a for-profit corporation, to challenge on religious grounds any allegation of discrimination made by another private party, even when the government is not otherwise involved in the matter. In other words, when Governor Pence said that his state’s law is identical to RFRAs in other states and would not apply to disputes between private parties without government action, he was simply wrong. on the law and its effects on future discrimination.
If Governor Pence and the Indiana Legislature are committed to showing that their law does not address discrimination, there is an obvious solution. They could amend the law to make it clear that protection against discrimination in the commercial market cannot be overcome by claims of religious freedom. While the law is not intended to protect discriminatory actions, it is difficult to understand Indiana’s resistance to this proposal.
As Indiana enacted its RFRA, conservatives Georgian lawmakers tabled the state’s religious freedom bill after a successful, bipartisan effort to amend the law in precisely this way, to protect civil rights laws. The authors of the Georgia RFRA were a little more frank in explaining that the amendment to protect against discrimination “would completely undermine the objective of [RFRA] invoice, âas one sponsor noted. Why else would they have effectively removed it?
People of good faith may disagree on the merits of federal and state laws designed to protect religious freedom. In some cases, these laws can do an important job of protecting religious minorities. But recent efforts to pass state RFRAs fail to strike an appropriate balance between the rights of religious believers and those who may be harmed when the state grants them exemptions from civil rights laws. The result is that the movement to protect religious minorities has become a cloud of suspicion – it seems they are seeking permission to discriminate. To lift this cloud, state lawmakers must provide stronger guarantees that religious exemptions will not impose significant costs on others, especially in the context of discrimination in employment and access to services and business places open to the general public.
Of course, a good start to providing such assurances would be to tell the truth about the nature of the new state law. By misunderstanding or distorting the content of Indiana’s RFRA, Governor Pence has raised significant concerns about his state’s commitment to core anti-discrimination and equality principles.
* Correction, March 30, 2015: This coin originally misspelled Vanessa Willock’s last name.
Learn more about Slate’s coverage of Indiana’s Restoration of Religious Freedom Act.