Is Indiana’s law a win for religious freedom or a loss for LGBT rights? Five questions you need to ask

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Mike PenceThe state of Indiana passed its own version of the Religious Freedom Restoration Act. The law has made headlines as being “controversial” and “anti-gay.” But what exactly does the bill mean?

Here are some answers to some questions you should ask about the law.

1. Can businesses discriminate against LGBT people in Indiana?

Yes — but that has nothing to do with this law. In Indiana (like a lot of states) there are no statewide protections against discrimination against LGBT persons. Businesses do not need a religious exemption to do this. There are executive orders that prohibit LGBT discrimination in public employment, and some municipalities have local ordinances. But as a state, Indiana has never added sexual orientation or gender identity to its list of protected groups.

2. What does the bill do?

The law passed by Indiana is nearly identical to the federal RFRA. Both acts give additional religious liberty protections so that the government cannot “substantially burden” a person’s exercise of religion except when it is something government must do (“compelling interest”) and there isn’t another way to accomplish the same goal in a way that doesn’t burden religious freedom.

The U.S. Supreme Court has already ruled that civil rights laws that prohibit discrimination meet this test. The government has a compelling interest to protect civil rights and requiring florists, photographers, and other businesses from discriminating against LGBT customers is the least restrictive means to this end.

3) Who is affected by the law?

Both the Indiana and federal RFRA acts are protections for persons from governmental actions. There is nothing in either the Indiana or federal RFRA acts that pertains to actions between private parties. RFRA could be used to stop the government from doing something; it cannot be used in cases that do not involve the government. By passing the law, the state is limiting its own power to act against its residents.

4) Is it constitutional?

The Indiana law is constitutional. There may be fears that it could be used to discriminate (though we haven’t seen that in the two decades of the federal RFRA), but even opponents know that the law is constitutional.

ACLU of Indiana, for example, strongly opposed the bill, but it recognized that the bill was constitutional. ACLU of Indiana executive director Jane Henegar said in a statement

While on its face the law is constitutional, only time will tell the full consequences of the state RFRA. It poses harm to our reputation as a welcoming state that is open to everyone, and it disrupts the balance that respects individuals’ freedom of religion without jeopardizing others’ freedom from discrimination.

ACLU of Indiana sees the new law as a response to last year’s court decision that legalized same-sex marriage in Indiana. It probably is. But that doesn’t mean that the bill is unconstitutional or that it affects LGBT rights.

The bill is being used by both sides of the same-sex marriage debate as a symbol. Opponents to same-sex marriage can claim to be protecting religious liberty; supporters can stand against the law as harming the “reputation” of the state. Possibly. Probably. And perhaps for good reason. But for people who care about the text and meaning of law itself, there is nothing that makes discrimination more likely with this law.

5) If the law is the same as the federal RFRA, then is it necessary?

The argument for passing a state RFRA is that the federal RFRA applies only to actions by the federal government. Actions by state governments (and municipalities) are not covered by the federal RFRA. By passing its own RFRA, a state is bringing its protections of religious exercise into line with federal law. So, if you think that RFRA is important, then a state law is necessary. If you don’t think this is important (or oppose the RFRA), then the law is unnecessary.


The Indiana bill is identical to the federal RFRA and does not affect discrimination against LGBT persons. It’s connection to LGBT rights is political and symbolic (for both sides). If you care about LGBT discrimination, focus on getting Indiana to add sexual orientation to its list of protected groups.

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  • Shawnie5

    Thank you for a logical and objective look at the issue.

  • TapperJ

    “The Indiana bill is identical to the federal RFRA and does not affect discrimination against LGBT persons.” You’re being disingenuous at best, Tobin. The definition of “person” is NOT identical.

  • Andrew

    Besides the different definition of person, the Indiana bill also differs from the Federal RFRA in that it uses the phrase “or is likely to be substantially burdened” and it also EXPRESSLY allows use of RFRA as a defense in lawsuits between private parties (in direct contradiction to what is stated above).
    “Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending
    violation as 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. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.”

  • etseq

    Stick to religion and stay out of legal questions where you have no expertise. Everyone one of your points in wrong so drop the tendentious moralizing.

  • etseq

    Reading this again I am convinced you aren’t trolling or being disingenuous, just incredibly stupid.

  • The problem stemming from the RFRA is that what the state might classify as a “substantial” or “compelling” governmental interest is not very clear and will be tested over time. This seems to me to be another layer of bureaucracy that will muddy the waters even more and so, create an environment where explicit discrimination based on any “sincere” religious belief is a much wider door. How easy it would be for me to argue my religion compels me by its moral purity code not to be in the same room with a person who prays to icons or statues and so, my denying entrance of these persons to my business is a protected exemption. The line between denying a cake to two married men and a meal at a counter to someone my religion considers “impure” is ambiguous and that level of ambiguity is where the danger lives.

  • mixalot

    What do you make of the drafting error in lines 23-24 of the Ind. law, the unique reference to a person’s “right to the exercise” of religion (as opposed to the bare “exercise of religion” found elsewhere in the law and in the federal RFRA)? Once the state justifies a burden on the exercise of religion, it becomes entitled to burden the entire “right to the exercise of religion” of that person.

  • Larry

    Sure, under RFRA, a same-sex couple could get legally married in Indiana in the morning and be denied a hotel room that night. But the implications of the law go far beyond the wedding industry.

    Here are a few other potential consequences of the law, according to the state LGBT advocacy organization Freedom Indiana:

    Childcare ministries could revise protections for children in their care, potentially even altering the requirement of childcare workers to undergo background checks.

    A man could demand exemption from domestic violence laws by claiming that his religion affirmed his right as a husband to “discipline” his wife and children through physical punishment.

    Police officers could opt out of protecting certain houses of worship, or even certain people, according to their religious beliefs.

    But wait! There’s more! The language is broad enough that even more loopholes for legal discrimination will undoubtedly materialize:

    Doctors could refuse to provide prenatal care to same-sex couples expecting children — or to unmarried couples, for that matter.

    Pharmacists could refuse to provide birth control if they believe their religious beliefs forbid its use.

    Guidance counselors or therapists could refuse to help LGBT children if they “disagree” with their identities.

  • Dan

    Due to my strongly held religious beliefs about taking care of the poor,children,the elderly,the disabled and treating immigrants with respect as Christ commands I must therefore decline any goods and services to the GOP and any members of churches that support them I cannot in good faith be associated with their immoral behavior to do so would be supporting sinful behavior.

    What do you think will happen to the store owner that says that instead of I can’t bake a wedding cake for a gay couple because of my religious beliefs.

  • Ben in oakland

    “Is Indiana’s law a win for religious freedom or a loss for LGBT rights?”

    how about a loss for religious freedom AND a loss for LGBT rights?

    How about a win for mendacity and a win for discrimination?

    We have laws at every level of government, and have had for more than 50 years, which forbid discrimination on the basis of religious belief, YOURS or MINE. The intention of this law is to allow it in any case where someone wants to claim it.

    Not an exercise in anti-gay activity? At least THREE of the people present for the official signing photograph are virulently antigay. Nearly ALL of these laws have appeared in the last year– precisely the time that it has become apparent that gay people WILL be allowed to marry, despite the theocrazies.

    gov. Pence has stated that everyone misunderstands this law, and that further legislation will clarify its intent. If it is so unclear that further legislation is required, then hwy exactly is further legislation required? Why did he sign it?