How Indiana will “clarify” its religious freedom bill

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State Seal of Indiana

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State Seal of Indiana

State Seal of Indiana

State Seal of Indiana

Over the weekend, Indiana Gov. Mike Pence allowed as how he and his advisors were surprised by the adverse reaction to the state’s new Religious Freedom Restoration Act (RFRA). If so, their Hoosier domes are too thick to have been penetrated by last year’s nationwide protest against Arizona’s similar bill, which Gov. Jan Brewer consequently vetoed.

And because Pence failed to follow Brewer’s lead, he’s now in a world of hurt. As in, a lot of businesses and other “persons” are threatening to leave, boycott, and otherwise remove the hem of their garment from Indiana. What to do?

Even as he stands by the Act and blames the media for misrepresenting what it does, Pence says he will support legislation to “clarify,” — or perhaps “amplify” — it. The obvious way to do that would be to import some anti-discrimination language, the way a bunch of other state RFRAs do. But the governor ruled that out with the words, “That’s not on my agenda.”

The problem is that the brainiacs behind the Indiana law thought that they could avoid the charge of supporting discrimination against gays and lesbians by making clear that they wanted Hoosiers to be able to refuse to provide services to other folks as well. Here, for example, is how conservative activist Monica Boyer characterized the bill in January in a post featured on the Indiana Tea Party website.

What it isn’t

The media has wrongly portrayed this bill to be only about gay marriage.  This couldn’t be further from the truth.  This Freedom of Conscience bill was designed to protect those who want the freedom of conscience when it comes to healthcare decisions, as well as organizations such as religious charities, businesses who have convictions, colleges with faith statements for students and employees, and so much more. The Indiana RFRA is not only for those be religious.  As my friend Jesse Bohannon said, “Even an Atheist has a right to refuse to do something that is morally repugnant!”

What’s the bottom line?

Hoosiers should not be required to provide a service, produce a product, rent out property, or be forced to do business with someone if the service goes against their conscience. Religious or not. Contrary to the hype the media is spewing, this is not a theocratic bill.  It is a FREEDOM bill. Freedom for everyone, not just some.   

In other words, the Indiana RFRA was sold as a kind of conscientious objector statute. If a Hoosier finds Muslims or Jews or mixed-race couples or short people or University of Kentucky basketball fans morally repugnant, she would be able to refuse to provide them with services.

Pence himself seemed to support this concept yesterday when George Stephanopoulos asked him if the law would permit an Indiana florist to refuse to serve a gay couple at their wedding. “People are trying to make it about one particular issue, and now you’re doing that as well,” he said. But then he continued:

The Religious Freedom Restoration Act has been on the books for more than 20 years. It does not apply, George, to disputes between individuals unless government action is involved, and in point of fact, in more than two decades, the Religious Freedom Restoration Act has never been used to undermine anti-discrimination laws in this country.

Whoa! Was Pence really saying that RFRA simply does not apply to that dispute between a florist and a same-sex couple; i.e. that if the couple sued the florist for refusing to provide services, the florist could not invoke RFRA? Today, Indiana House Speaker Brian Bosma seemed to confirm that this “clarification” is in the works by telling a reporter, “The removal of the spectre of RFRA being a defense to a claim that services were denied may be one approach.”

If this is the legislative fix that emerges, it will astonish the country. And seriously bum out a whole lot of Indiana Tea Partiers.

Update: Bingo! “After much reflection and in consultation with leadership in the General Assembly, I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses a right to deny services to anyone,” Pence said.

Further Update: That’s what legislators are proposing to the governor, at least with respect to sexual orientation.

  • Larry

    “in more than two decades, the Religious Freedom Restoration Act has never been used to undermine anti-discrimination laws in this country.”

    Because in many states sexual orientation was left out of the classes covered anti-discrimination laws. Indiana being one of them. It was always legal to discriminate against gays in business. But with the incoming gay marriage ban being struck down, the bigots were afraid that this omission in the state anti-discrimination laws would no longer exist.

    ““The removal of the spectre of RFRA being a defense to a claim that services were denied may be one approach.””

    So Indiana sabotaged its economy and reputation in order to only go through the motions of placating politically powerful bigots? Oh well there is that Tea Party “fiscal responsibility” for you. What a waste of time.

  • Yup.


    Thank you, Professor. Who are they using for lawyers?

    This issue was settled decades ago by the Supreme Court in Heart of Atlanta Hotel. The answer is, “No. If you are a business with any ties to interstate commerce, you must serve everyone.”

  • Larry

    The only flaw in that is Heart of Atlanta and its sibling Katzenbach v. McClung (aka “The Ollies Barbeque Case”) is that the Civil Rights Act does not include sexual orientation except in civil service employment. Indiana doesn’t include it in any context.

    What those cases do is show that discriminatory conduct in business is an inherent harm. But the problem being, that many states are indifferent to the harm being caused. This law was passed so the state can hobble future efforts to include sexual orientation in their anti-discrimination laws, which would be a natural expectation after their gay marriage ban is struck down.

  • Glenn Harrell

    George Stephanopoulos asked him if the law would permit an Indiana florist to refuse to serve a gay couple at their wedding.

    This was a loaded question. George is implying that all florists are gay and hair dressers as well? Here goes the liberal left media again–attacking their own.

    White, conservative/fundamentalists/heterosexuals had better learn to play nice to all these enemies of social and religious heritage for they are only a few years away from a similar bill that reads,

    “We reserve our rights not to serve or speak to white, conservative/fundamentalists/heterosexuals.” They are a bunch of brash, whiny, minority trash. Now, just try and sue us. –signed, the former bunch of brash, whiny, minority trash.

    By this time we all will have our own (not just powerful politicians) personal servers and any possible incriminating discrimination can easily be wiped clean. A lawyers dream and or nightmare.

  • Larry

    Nice try, but its the most dishonest and ridiculous take on the subject you can find. George was referring to an actual case where florists got sued for refusing to provide for a gay wedding. You couldn’t even be remotely on point here.

    “White, conservative/fundamentalists/heterosexuals had better learn to play nice to all these enemies of social and religious heritage ”

    …Because they are willing to lie like cheap rugs to defend their privilege to treat others like crap.

    I will leave you with a great line from a truly awful movie.
    what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul

  • David Kaiser

    This is absolutely crazy. I opened the link and read the actual law. I can’t see anything in it that could possibly be used to justify private discrimination. It does indeed seem to be a restatement of the federal law, which says that the government needs a compelling interest in order to pass any law or take any action that burden’s some one’s exercise of religion. It’s not impossible that I missed something, and I urge everyone else to look for permission to discriminate at all, because I can’t see it.

  • ben in oakland

    White, conservative/fundamentalists/heterosexuals had better learn to play nice to all these enemies of social and religious heritage for they are only a few years away from a similar bill that reads, “We reserve our rights not to serve or speak to white, conservative/fundamentalists/heterosexuals.”

    so are you saying that those people are really afraid that we will start treating them exactly as they have always treated us, when they could do so?

  • opheliart

    It’s that circular Theory, ben in oakland … what goes around comes around … but in opposing directions 🙂

  • Glenn Harrell

    Hi Ben,

    I am saying, sarcastically, that turn about is fair play. Legally, neither side is allowed to show such discrimination against the other. But, isn’t it sad that it takes a law to make it happen?

    I don’t believe for one minute that were it not for such preventative laws that either extreme would serve the other and not show prejudice or resentment. While the majority in the middle stare in dis-belief at both sides.

    The demographics are shifting in this country and those who are heading up this charade of Indiana mumbo-jumbo against people who do not look or act like they want (assuming these people are not breaking any laws) are not going to be the majority much longer. This may well be the bigger battle being fought here–the loss of power and “the way we were”.

    Thanks for asking a question and not assuming you correctly understood my sarcasm. If I don’t laugh at this madness my wife and dog can’t live with me.

  • Ben in oakland

    I’m glad it was sarcasm, because you had me worried there.

    I will disagree, though. we gay people have shown remarkable restraint with the people who call us threats to civilization, who demand our imprisonment or deaths, and who would demonstrate every harm they are capable of, if they thought they could get away with it.

    These ‘religious freedom” fanatics mean only the freedom to follow their religion, to do what they want and justify it as sincere religious belief.

    It’s just plain old religious bigotry, dressed up in its finest sunday-go-to-meetin’ drag.

  • Ben in oakland

    You should probably look at all of the stuff AROUND the passage of this bill.

    There’s a photo circulating on the internet– you can see it at– showing three of the state’s leading members of the anti-gay industry– surrounding the governor as he signed the bill.

    All of these “republican leaders” are lawyers, and they know that it’s already legal to discriminate in providing services to LGBT people in most of IND. So, their bill sanctions that discrimination and expands it in the few places where discrimination is prohibited. That’s its reason for existence. It is no coincidence at all that these religious freedom bills are coming up now that gay marriage is very nearly legal. This is the latest rallying cry of the anti-ex-gay industry.

    During the legislative session, Democrats offered an amendment that would have ‘clarified’ that this state RFRA could not be used to license discrimination against LGBT citizens. Republicans voted it down. If there was no intent to license discrimination they would have included that language. It’s the smoking gun.

    And it’s part of the legislative record. Look it up.

    And, as he governor of North Carolina just said about a nearly identical bill in his own state: “What problem are they trying to solve?”

  • opheliart

    it’s reigning men?

    Tall blonde dark and lean
    Rough and tough and strong and mean?

    God bless Mother Nature
    She’s a single woman too
    She took over heaven
    And she did what she had to do

    She fought every Angel
    To rearranged the sky
    So that each and every woman
    Could find the perfect guy


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  • IT

    The intent of this bill is clearly to allow someone to decline service to another person whom they find morally offensive. Gay honeymooners want to rent a room? This allows them to be refused, on the grounds that their existence offends religious belief. That this was the intent was clear when any effort to put non-discrimination into the bill was eliminated. (It is not clear to me how gay guys getting married and renting a room in any way infringe on anyone’s religious liberty….)

    This is far broader than the federal law which relates to government ‘s ability to “infringe” on liberty. This makes companies and individuals able to claim religious freedom even pre-emptively.

    And, despite the frequent use of the Kosher-deli-ham-sandwich argument, that’s not at all analogous. The question is not forcing a kosher deli to make a ham sandwich. The question is whether the Kosher deli can deny selling you a turkey sandwich that they sell to everyone else.

    It comes down to this: religious freedom is not the same as religious privilege.

  • Ben in oakland

    Religious freedom and religious privilege are indeed identical if your are an anti gay religionist.

    These so called RFRA’s are not about religious freedom. They are about religious exceptionalism.

  • Glenn Harrell

    Hi again Ben.

    “We Gay people”. You may wish you could speak for all the gay people and to do so is noble, since you have the good will of all mankind in your heart. Not all are remarkably restrained as you proclaim and as you model.

    I may want to speak for all the lawyers as to their moral aptitude and uprightness, but obviously I can’t.

    We live with the percentages of reality and those are discouraging these days. I would love to see the day when we have the right to work hard, eat, breathe and treat one another as we want to be treated—end of “rights”. I’m tired of feeding the courts and special interests groups and all their “rights”. That goes for the religions, and mamby-pamby narcissistic leechy busy bodies our there.
    (see how mean I am–they have rights too and I am probably this close to being sued)

    Bottom line is always the same. This is all about the money and my right to get all of it if possible. I can use “my rights” as a cover if that is what works.

  • Glenn Harrell

    On behalf of every perfect guy in the world,
    Jimmy and I thank you for the lovely poem.

    Its actually reigning idiots who are so in love with themselves, where’s the room for Mother Nature or you?

  • Glenn Harrell

    I can’t wait to see what happens when
    The Islamic Party Favors Company (USA Indiana branch)

    refuses to serve little Kenaniah and his after Bar Mitzvah celebration down at the Holyday Inn and Conference Center owned by Mr. Patelly and an “off shore” firm. (Swiss I think)

    Welcome to America ya’ll. We’ll keep the light on for you as long as the Middle Class continues to pay the bills and keep their mouths shut. They have a right to keep their mouths shut.

  • Chaplain Martin

    You and your readers might be interested in the statement made today by Brent Walker, Executive Director of Baptist Join Committee for Religious Liberty on the Indiana RFRA. Walker is a attorney who practices before the U.S. Supreme Court. General Counsel K. Hollyn Hollman wrote a good piece on the Utah compromise on RFRA. She calls Utah the most “Red” state in the nation, yet they met with the various parties including gay rights activist and worked out a deal that all could live with. The Blog:

    Maybe, just maybe, after Indiana’s experience with all the negative results from their act, Georgia and Alabama will smarten up and not pass a bill like it.