Mounting Concern for Indiana’s RFRA

Every so often, the process of enacting legislation can take some interesting twists and turns. Sometimes the end result looks nothing like what the parties were attempting in the first place.

Case in point. The recent enactment of the Indiana Religions Freedom and Restoration Act as subsequently amended by the legislature just days after its passage and signing into law demonstrates how the final outcome of a law may look nothing like what the drafters had in mind.

Does anyone think for one moment that when the Republican-led Indiana legislature and Governor Mike Pence set out to pass a bill with an emphasis on the right to make decisions based on religious ideology, that the final measure, once amended, would protect “gender equality” and “sexual orientation?”

Here is one lesson that I learned a long time ago: Discrimination in any form is bad. It is bad for me as a person and bad for any person that I would discriminate against. The Indiana legislature learned this session the hard way — through citizen as well as corporate outcry.

The RFRA says that the government cannot “substantially burden” a person’s ability to follow his or her religious beliefs, unless it can prove a compelling interest in imposing that burden or do so in the least restrictive way. The wording of the law itself is confusing and can clearly lead to various interpretations and likely litigation over its interpretation, which is just what the state of Indiana needs when its elected official should be working on ways to enhance economic and business growth and not to discourage it.

Within hours of signing the RFRA into law and receiving support from a handful of potential GOP presidential candidates, the public and business communities alike ignited a firestorm of anger at the new law.

Associations and companies were threatening to cancel or move business meetings and conventions. Organizations of all shapes and sizes as well as state governors and mayors were restricting travel to Indiana.

The NCAA voiced its concerns over the scope of the act. A demonstration was planned for the Final Four Basketball Tournament in Indianapolis. NCAA President Mark Emmet released a statement saying that his organization was, “especially concerned about how this legislation could affect our student-athletes and employees.”

Charles Barkley, an NCAA analyst and former college and NBA player noted that, “as long as anti-gay legislation exists in any state, I strongly believe big events such as the Final Four and Super Bowl should not be held in those states’ cities.”
Arizona got this message some time ago. Arkansas is getting the message today.

A number of companies and their leaders stepped forward to question the need for and purpose of such legislation. The following is just a short list of companies that were very vocal in their criticism of the Act: Angie’s List, Apple, Cummins, Gen Con, PayPal, Sales Force and Yelp.

PayPal co-founder Max Levchin tweeted that what happened in Indiana, no matter how it was “dressed up” was discrimination and “pretty unbelievable.” Apple’s CEO Tim Cook wrote an op-ed in The Washington Post that said the Indiana law was a “very dangerous … wave of legislation.”

Now, just days after signing the RFRA and justifying it on the grounds of existing federal law as well as the decision of the United States Supreme Court in the Hobby Lobby case, the politicians had second thoughts. Their immediate solution was to pass legislation on April 2 that makes it clear that the intent of the act is not to allow discrimination against gay and lesbian customers of Indiana businesses.

This so-called compromise may not be the proper solution. A total repeal of the RFRA should be under consideration.
Given the stance taken by Governor Pence over the past week, it seems highly unlikely that he would reverse course, but he may have been forced to do so already without knowing it or intending it.

If one positive thing has come out of this legislative nightmare, it is that the Indiana legislature is now on record as condemning any form of discrimination on the basis of gender identity and sexual orientation.

If the amendment to RFRA is signed into law by Governor Pence, it will be a first for Indiana. One has to wonder if the supporters the RFRA ever anticipated that they would be enacting legislation that singled out protection for the gay and lesbian community. Final outcomes can come in a variety of forms. Be careful what you wish for.

 

Thomas Barry Cooke is a professor of business law in the McDonough School of Business.

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