by Steve Sanders. Professor Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.
Technically, there was little if anything in what Gov. Mike Pence said about Indiana’s Religious Freedom Restoration Act in his ABC News interview Sunday morning that was factually false. But much of what he said was materially misleading, due to his desperation to stay on message and to obfuscate. To understand this crisis for the Pence administration and Indiana, it’s necessary to separate the law of the RIFRA from its politics.
Governor Pence (pictured) was correct that there has been a lot of misinformation about the RIFRA. The blame lies with both its opponents and its proponents, as well as the media. Contrary to what many progressive opponents have asserted, explicitly or implicitly, the bill does not create an immediate license to freely discriminate against gays and lesbians. Nothing in the bill expressly refers to gays or civil rights laws. And so some opponents of the law have done a disservice to reasoned and accurate public discourse.
How does the law actually work? Keep in mind that given the toxic politics that now surround the measure, no large, PR-sensitive business enterprise in its right mind would use it to turn away gay customers or employees. But imagine a small business owner does so, claiming that associating with gay people violates his religious beliefs.
First, the affected victim of discrimination would need to file a civil rights complaint – assuming that he or she lives in one of the dozen or so Indiana cities, such as Indianapolis, where civil rights ordinances actually protect sexual orientation. (In the rest of the state, such discrimination is perfectly legal right now, and Pence wants to do nothing to change that.)
As the next step, the business owner would go to court, invoking the RIFRA and seeking an exemption from compliance with the civil rights ordinance. This is the RIFRA’s central purpose: to force the government to convince a court that a challenged law – any challenged law – is “narrowly tailored” to serve a “compelling” government interest (as opposed to the First Amendment baseline of a rational relationship to a legitimate government interest) when the law is alleged to infringe someone’s exercise of religion. My colleague Daniel Conkle, an expert on RIFRAs, believes it is likely that a gay non-discrimination ordinance would pass this test, and I respect his judgment. And so in the end, the religious business owner might not actually get a pass from complying with the civil rights ordinance.
So why all the fuss? Setting aside the problem that some religious business owners will now think they have a green light to discriminate, the real problem with Indiana’s RIFRA has been less about its substance than its politics – specifically, the motivations of some of its most ardent proponents.