March 29, 2015

Indiana’s RIFRA: The Law is Complicated, But the Anti-Gay Politics Are Not

anti-gay politics, Indiana Religious Freedom Restoration Act, Mike Pence

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. 

Pence cited the fact Barack Obama voted for the Illinois RIFRA as a state senator more than a decade ago.  (Of course, Obama, unlike Pence, also supports marriage equality and opposes anti-gay discrimination.)  But back then, RIFRAs were thought to be about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks. 

By contrast, RIFRAs like Indiana’s are being impelled by the politics of anti-gay backlash.  Their most ardent supporters come from an increasingly angry, marginalized, and shrill subset of Christian conservative activists.  These activists want to stick a symbolic thumb in the eye of judges who struck down anti-gay marriage laws, along with the elected officials, business and cultural leaders, and ordinary citizens who have produced breathtakingly rapid change on the questions of marriage rights and LGBT equality generally.  Indeed, one sign of this progress, even in Indiana, has been the mainstreaming of outrage (from the NCAA to Angie’s List) against the very idea of anti-gay discrimination.

One of the leading RIFRA proponents in Indiana is Advance America (not to be confused with the payday lending company).  As the message on its web site explains (emphases in original):  “SB 101 will help protect religious freedom in Indiana by providing protection for individuals with sincerely held religious beliefs, along with Christian businesses and churches.  SB 101 will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers).

This message tells you much of what you need to know about the mindset of the people who insisted that legislators give Indiana a RIFRA: the reference only to protecting “Christians”; the crude lumping together of marriage equality and cross-dressing; the implication that this issue is less about protecting true religious conscience and more about drawing a political line against “supporting homosexual marriages.”

Scholars for whom I have great respect believe RIFRAs like Indiana’s will, in the end, not do any harm and may do some good.  And so to be clear, I am not asserting that anyone who supports a RIFRA presumptively does so from bad motives. 

But the problem is that RIFRAs have become a symbol of the resentment of a certain slice of right-wing Christianity that feels its social hegemony and privileged cultural and political position slipping away.  This group is now insisting on special rights and privileged treatment for religion beyond what the U.S. Constitution requires.  This group still controls the elected branches in some states like Indiana, but it is feeling an increasingly skeptical and chilly response from the mainstream public.  When the NCAA and Angie’s List rush to distance themselves from you, you have a serious image problem.       

Governor Pence’s awkward dance in repeatedly refusing to answer a simple question – “Is it wrong to discriminate against gay people, yes or no?” – gave away the game on this matter: it was stunning evidence he cares more about staying in the good graces of anti-gay bigots than doing what’s right by mainstream Hoosiers.  The law of Indiana’s RIFRA may be complicated, but the politics are not.

[photo by Gage Skidmore]