My church, the Christian Church (Disciples of Christ), is moving our 2017 General Assembly out of my hometown Indianapolis in response to Indiana’s Religious Freedom Restoration Act (RFRA), recently signed by Governor Mike Pence. This is painful for our church and for my family.
Since my wife is general minister and president of the church and we are residents of Indianapolis — she was baptized here, went to school here, and we were married here — I’ve been giving a good bit of thought to this the last few days. I’m a Bible scholar and minister, not a lawyer or judge; but I’ve studied the history of RFRA and think I understand what’s at stake.
Supporters of Indiana’s law say this is much ado about nothing because we’ve had RFRA laws since Bill Clinton signed the original federal law in 1993. States like Illinois, with the support of state senator Barack Obama, passed their own versions of RFRA a few years later, after the Supreme Court ruled in 1997 that the federal law didn’t cover states and municipalities. These earlier laws, supporters of Indiana’s RFRA say, had nothing to do with legalizing discrimination and neither does Indiana’s law. They’re right about the earlier laws.
Indiana’s law is different for three reasons: its timing, what it adds, and what it doesn’t add.
The timing of the law — just after Indiana’s same-sex marriage ban was struck down as unconstitutional — is hard to ignore. Why this bill now?
Earlier RFRAs responded to specific Supreme Court rulings. The original federal law addressed a 1990 ruling that overturned three decades of jurisprudence to rule that two members of the Native American Church could be denied unemployment compensation because of a religious ritual they participated in. In the original RFRA, Congress restored the “compelling interest” standard that courts had used since 1963 to adjudicate religious freedom cases. States started passing their own RFRAs a few years later when the Supreme Court said the federal law doesn’t apply to cities and states. The issue there had to do with church property and a local historic preservation ordinance.
Indiana’s RFRA responds to a 2013 Supreme Court ruling that struck down a federal same-sex marriage ban. The judicial reasoning in that case has led lower courts to rule that state same-sex marriage bans also violate the constitution. Indiana’s ban was struck down last year.
Whatever else is at stake, Indiana’s RFRA is a reaction to same-sex marriage.
That’s a problem because of a key change Indiana makes in its version of RFRA.
What It Adds
Indiana’s law adds a new class of “persons” protected by the law. Earlier laws covered individual people and their faith communities. Indiana’s law explicitly adds certain businesses and nonprofits to the list of “persons” who enjoy the special protections for religious belief and practice normally given to individuals and faith communities.
That’s a huge problem for a number of reasons. But honestly, the Supreme Court opened that can of worms with its Hobby Lobby ruling last year.
When it comes to real-world impact, RFRAs post-Hobby Lobby that incorporate its language are fundamentally different than RFRAs pre-Hobby Lobby that don’t. Before, these laws protected the religious beliefs and practices of individuals and faith communities. Now, they give special legal protection to businesses and nonprofits as well. Indiana’s law makes the business expansion explicit.
It’s a whole new ballgame.
This law isn’t about, sabbath-keeping, home schools, religious rituals, and church property like earlier RFRAs were. It’s about jobs, housing, and commerce. It’s about how businesses can treat their customers and employees.
This is not just apples and oranges; it’s apples and space ships.
But what’s really problematic is what Indiana’s law leaves out.
What It Doesn’t Add
It doesn’t add language that clearly says these religious protections don’t allow businesses to discriminate against their employees and customers for their sexual orientation or gender identity.
The law’s silence about this discrimination is really important.
Businesses are free to discriminate for all kinds of reasons: you’re not wearing a coat and tie; the portraits you propose offend the photographer’s artistic sensibility; this law firm doesn’t defend tobacco companies or gun shows or abortion providers; or whatever. All of that’s OK.
But if a business refuses to serve you because you’re white or black or female or Christian or Irish, you can sue and almost certainly take them to the cleaners. The owner may not like serving Christians because she thinks they’re syncretistic women haters who warp the minds of children. But if she’s operating a business, she can’t put a sign in the door that says, “We don’t serve Christians!” She’s free to believe and say what she believes, but she’s not free to discriminate in her business against people because of their religion.
Why is one kind of discrimination OK and the other is not?
It’s because we have a whole slew of federal and state laws that explicitly say that in public commerce, employment, and housing you can’t discriminate based on race, gender, ethnicity, national origin, or religion.
This list is not just randomly created to describe the glorious diversity of the human race.
Each of these categories is explicitly named because there’s an actual awful history of discrimination in commerce, employment, and housing for these specific reasons.
There’s also a long, tragic, brutal history of people losing jobs, housing, service, physical safety, and even life itself because someone else thought they were gay, lesbian, or transgender. So it’s not surprising that the federal government and a number of states and municipalities have added sexual orientation and gender identity to the list of categories explicitly protected against discrimination in commerce, employment, housing, and government services.
Indiana, unfortunately, is not one of the states that have done that, though counties and municipalities — like my wonderfully progressive and welcoming hometown Indianapolis — have.
One of the things, in fact, that has really worried people about Indiana’s RFRA is the fear that it will invalidate local ordinances that protect the public from this kind of discrimination.
The law’s deafening silence on the issue — though it was repeatedly raised as a key concern during public hearings before it was passed — speaks volumes.
Legislators knew this was a serious concern, but they chose to add nothing to the law to allay those fears. Why not?
So now what?
Perhaps the governor and legislature didn’t mean to sanction discrimination. But the timing of the law, what it adds, and what it leaves out have combined to send a powerful and harmful message: “Indiana is a safe-zone for discrimination, whatever the courts decide.”
That’s the message the nation got. And a whole bunch of us don’t like it. And a lot of us are willing to vote with our commerce to make that clear.
This is not going to blow over any time soon.
We should repeal the law.
At the very least, the legislature needs to clarify that RFRA doesn’t overrule local laws that protect human rights. We should also pass an anti-discrimination law that adds sexual orientation and gender identity to the narrow list of categories protected by our civil rights code.
I am proud of my church, my wife, my city council, and my mayor for making a strong and timely public witness against this ill-conceived law. Hopefully, lawmakers can undo some of the damage by quickly passing legislation that sends a different message about Indiana, more consistent with the core values of our people: “All are welcome here!”