Is Indiana’s Law Really about the LGBT Community?

Let me start by saying that I am not a legal scholar or even a lawyer. I do have interests in the law, but mostly in the area of copyright. But I’m also someone who likes to be informed, and does my research. If their are sharp legal minds out there who would like to add to the conversation, please chime in! That said, I’ve tried to remove as much of my strong liberal biases to provide some good information about the debate. As best I can, I’ve stuck to the facts, and leave it up to you to draw your own conclusions about their value.

The Federal Religious Freedom Restoration Act (RFRA) of 1993

This piece of legislation was passed by the federal government to prevent the harassment of Native American tribes trying to protect sacred lands and also from prosecution over the use of Peyote in the Native American Church. It passed unanimously, and was signed into law by President Clinton. Since then, the courts stripped its application to states saying that the federal government lacked the constitutional authority to enforce the law within states. The law still applies to federal law and federal agencies, but this is why state laws started popping up to duplicate it. Read the wiki entry on the Federal Religious Freedom Restoration Act

How is Indiana’s RFRA law different than the federal law or the other state laws?

The Indiana law includes two key differences in the language. First, the Indiana law extends the right of freedom of religious expression to businesses. Now, businesses can use the defense of a “substantial burden” on religious expression as a defense. Second, the law includes language that allows for this defense to be used in civil cases, and not just cases involving the government. The Atlantic has an informative piece about these differences. (Just as a note, this article has a clear liberal bias)

What is Public Accommodation?

Public Accommodations are public and private entities used by the public. It includes government institutions, retailers, service centers, educational institutions, and the like. It excluded religious organizations and private clubs. The Civil Rights Act and the Americans with Disabilities Act provide that public accommodations must be handicap-accessible and must not discriminate on the basis of race, color, religion, or national origin. Many states have passed laws that also include sexual orientation and/or gender identity in the list of groups that cannot be discriminated against by public accommodations. Indiana does not have a law that makes it illegal to discriminate against people for sexual orientation or for gender identity. Here’s the wiki on Public Accommodations which also lists the states that have passed laws protecting the LGBT community.

Does the Indiana RFRA make it legal to discriminate against the LGBT community?

Because Indiana does not have a public accommodations law protecting people from discrimination based on sexual orientation or gender identity, it was already legal to discriminate against the LGBT community in much of Indiana. There are six municipalities that had passed laws protecting LGBT from discrimination, though. The Indiana RFRA does provide an additional legal defense to businesses should a civil suit be brought against them, undermining the municipalities laws. Those local municipalities are listed here, along with the municipalities in other states.

Are there other implications beyond discrimination?

That is a good question. Beyond the state law having supremacy over the six municipality laws, another consequence is that it strengthens and supports businesses in their ability to deny funding for insurance covering birth control and abortion. The federal RFRA, not the first amendment allowing for freedom of religion, was the basis for the Supreme Court’s ruling in the Hobby Lobby case that allowed “closely held” corporations to “opt out” of laws based on religious beliefs. The Indiana law strengthens and supports this Supreme Court decision in the new language included. One more wiki on the Hobby Lobby Supreme Court Case.

Potential for unintended consequences.

Already, various groups are looking into the limits of the law. Here are two articles I’ve come across about that already:

First Church of Cannabis
Indiana Wiccans

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