What the Controversy Over Indiana’s RFRA Was Really About

A couple of weeks ago, Indiana passed a law entitled the “Religious Freedom Restoration Act” (RFRA). (Click here to read the entire text of this short bill.) In a short period between the legislature passing the bill and the governor signing it, the bill became the center of an unprecedented amount of controversy. Since I am from Indiana, I have had a front row seat in witnessing this spectacle. At first, the issue was confusing as one side told one story and the other side told a significantly different one. So who was correct? After some time and review, this controversy has become clearer to me. (In this article, I specifically attempt not to take sides in the overarching controversy. I am merely seeking to figure out what the controversy is about and whether it was off base as one side claimed or necessary as the other side claimed.)

The reason this controversy has been confusing is that the law was about something which it wasn’t, and yet still was. The LGBT (lesbians, gays, bi-sexuals, and transgendered) community and supporters cried out that the bill granted businesses a license to discriminate against people, specifically LGBTs. Supporters of the bill claimed that it wasn’t about this at all but rather was about keeping the government from interfering in religious practice. They seemed dismayed at the controversy and pointed to the fact that the federal government as well as 19 other states have RFRAs. “Why are you picking on us?” seemed to be their question.

Legal experts weighed in. As it turns out, from a legal standpoint, RFRA supporters had a point in that the bill wasn’t likely to be able to allow businesses to discriminate as detractors claimed^{1, 2}. On the other hand, Indiana’s RFRA isn’t identical to others as RFRA supporters suggested.

Previously, religious freedom had been considered only for individuals and religious organizations such as churches. Indiana’s RFRA specifically granted for profit businesses the defense of religious practice. Secondly, it grants this defense not only against the state but also in private party ligation. So, whereas other RFRAs protected individuals from the unnecessary interference by the government, Indiana’s RFRA also grants business this potential freedom against anyone³.

That covers the technical details, but there is still more here than just what these details reveal. There is a significant amount of context to be understood as well. RFRA supporters said that the RFRA wasn’t about letting businesses discriminate, and I believe that many RFRA supporters were not in favor of this sort of discrimination. But… let’s not pretend that Indiana has been exactly pro-LGBT. Indiana has tried to pass a hetero-sexual marriage amendment for some time⁴. But instead of this, late in 2014 Indiana had been forced by court order to begin granting homosexual marriage licenses⁵. Adding to the setting, a 2013 case in New Mexico denied a photographer from using that state’s RFRA as a defense. The Indiana law seems to obviously had this case in mind, seeking to favor the side of the photographer were there to be similar litigation in Indiana.

As mentioned, I believe that many conservative supporters of the RFRA weren’t wanting businesses to discriminate. These supporters want to accept LGBTs…. just so long as LGBTs aren’t getting married and claiming that they are normal. In other words, Indiana’s RFRA isn’t about businesses discriminating, yet it is a significant statement on the conservative side of the political spectrum in general and on the view of homosexuality in particular (subtle though it may be). The issue has been clouded and confused because people talked about business discrimination when the controversy was really about how acceptable homosexuality is or should be.

Let’s review here. Indiana has been against homosexual marriage though recently forced to allow it anyway. There was a recent case in another state where a same-sex couple won against a photographer (business). Now Indiana Republicans, who we know are generally against homosexuality, pass a bill which isn’t technically about LGBT at all. But even so—and though it may even be good to have a RFRA of some sort—the bill is quite favored toward businesses, with particular provisions to prevent a potentially homosexual party from winning a case similar to the one in NM. On the other side, the government was doing nothing to help or protect the rights of LGBTs or other individuals who might end up on the receiving end of the religious freedom defense. Additionally, according to one article I read⁶, Republicans had specifically vetoed an amendment to RFRA which stated that businesses weren’t allowed to discriminate.

So to answer our question as to who was correct? RFRA supporters were being more technically accurate in regards to the RFRA specifically not being about discrimination. However, overall, it seems to me that the bill’s critics weren’t mistaken in their opinion that Indiana conservatives are unsupportive of LGBTs. As if to highlight the point, the Indiana government only passed an anti-discrimination amendment after being held hostage by national public outcry, and even then they did only the minimum they could in order to try and reverse the backlash. If Indiana Republicans were truly against the discrimination of LGBTs, why didn’t they add them to the list of groups whose civil liberties are protected? That would have truly reversed Indiana’s new image. While the measure they did pass will probably stem the tide of public backlash, I’m not sure it really changed many people’s perception of Indiana.

If I can find the time, I would like to write another article examining discrimination and how a RFRA act does or doesn’t relate to Christianity.

photo credit: Jason Pier in DC via photopin cc