With his state’s new Religious Freedom Restoration Act (RFRA) the focus of a heated national debate, Indiana’s Republican governor, Mike Pence, took to the microphones Tuesday declaring he would welcome legislation "that makes it clear that this law does not give businesses a right to deny services to anyone.”
The new law, which (despite claims to the contrary) differs significantly from previous federal and state versions by extending religious belief exemptions to cases that do not include a state entity, has raised an alphabet soup of objections from groups ranging from the ACLU to the HRC to the NCAA. Key to their concerns is the notion that Indiana’s RFRA will be used to deny retail services to gay and lesbian couples, with examples such as florists and the bakers of wedding cakes often cited.
The fear is justified. As written, the Indiana statute seems a direct reaction to Elane Photography v. Willock, a case where a private wedding photography business in New Mexico denied service to Vanessa Willock, a woman who wanted professional pictures of the commitment ceremony she’d planned with her same-sex partner.
New Mexico has a non-discrimination law, which covers sexual preference, but Elane claimed a right to photograph only “traditional weddings” under the state RFRA, stating objections to same-sex unions stemmed from deeply held Christian beliefs. The New Mexico Supreme Court found for Willock, ruling that while the state did have a valid RFRA law, that law did not cover suits where there was no government entity, and only private parties were involved.
Indiana’s new law, drafted after that 2014 decision, specifically says a litigant can assert a “claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” And in that assertion, it goes beyond the language in either the federal RFRA or any of the state acts being bandied about by Pence and his various defenders.
An attempt to add Indiana-like language to the Arizona RFRA last year met with strong political objections and threats of economic boycotts; so much so that Gov. Jan Brewer vetoed the legislation when it hit her desk. Georgia Republicans, too, have abandoned a push for private party inclusions after bipartisan pushback. Somehow, perhaps owing to the heady currents of November’s electoral red tide or Pence’s own greater ambitions, Indiana’s new, more inclusive RFRA made it into law. But now, with the Indianapolis-headquartered National Collegiate Athletic Conference agonizing over the prospect of next week’s championship basketball game getting played in an unwelcome spotlight, a variety of conventions looking to move, states passing bans on official travel to the Hoosier State, and even the pop band Wilco cancelling in-state appearances, the governor and his party brethren are looking for a way to save face.
That way is likely some sort of state non-discrimination law protecting its LGBT citizens — something other states with RFRA laws have seen fit to add — but even with that welcome fix, a glaring problem remains for a substantial number of Indiana residents.
For, while new legislation might prevent discrimination based on sexual preference, it will not prevent discrimination on the basis of sex — at least not in one very important area.
When the Supreme Court found for Hobby Lobby last summer, ruling that a private company could deny insurance coverage for reproductive services to women employees because of the owners’ strong religious beliefs, it boldly extended the reach of federal RFRA protections. The decision instantly uncorked a stream of follow-up cases into which happily waded educational institutions, religious charities and other “closely held” private businesses.
True, all of those cases involved a state actor, as most concerned insurance requirements under the Affordable Care Act, but none have so far been significantly patched — despite the fact that abortions are guaranteed legal in the U.S. under Roe v. Wade, and contraception cannot be banned because of the decision in Griswold v. Connecticut.
If the Indiana RFRA is not repealed outright, and is instead allowed to stand with some later clarifying statute protecting LGBT rights — which now seems to be the likely outcome — the extension of religious belief exemptions to cases concerning only private entities will stand with it. It is then not hard to imagine the penumbra (to use Griswold language) of Hobby Lobby creeping across a slew of discriminatory actions not expressly forbidden by another law.
In a place like Indiana, where the state’s feticide law — originally intended for illegal abortion providers — was just used to sentence a young woman to decades in prison after she was convicted of using a dumpster to dispose of her miscarried fetus, what are the chances the legislature will coalesce around a law to safeguard abortion rights or contraceptive services? And will concerned residents or national organizations mobilize to keep the heat on Pence and the Indiana GOP?
Indiana is said to be famous for its “Hoosier hospitality” — an easy-going and welcoming kind of Midwest charm. The Republican Party, on the other hand, is trying to shake its national reputation for spearheading a “war on women,” earned through abortion restrictions, cutbacks in women’s health services and childcare, and resistance to improvements in minimum wage and paid leave laws. When one meets the other on the grounds of the Indiana state house, is there much doubt which reputation will remain intact?