Can Indiana compromise on LGBT rights, religious liberty?

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Newlyweds Pidge Winburn and Amy Fowler celebrated Christmas Day brunch with friends at their home. The two show off their wedding rings that a friend got them; an A for Amy and a P for Pidge. The two were married on Monday (December 23). Photo by Leah Hogsten | The Salt Lake Tribune

Newlyweds Pidge Winburn and Amy Fowler celebrated Christmas Day brunch with friends at their home. The two show off their wedding rings that a friend got them; an A for Amy and a P for Pidge. The two were married on Monday (December 23). Photo by Leah Hogsten | The Salt Lake Tribune

The “Utah compromise” was hailed by some as a groundbreaking balance of religious liberty and LGBT rights. But now, as Indiana Republican leaders examine whether such a policy could be introduced in the Hoosier state, business leaders are roundly rejecting the concept.

It’s too late, they say, for that kind of compromise to work in Indiana.

“After RFRA,” said former Angie’s List chief Bill Oesterle, “that’s a horrible half-solution.” He is referring to the battle over the Religious Freedom Restoration Act in July.

READ: Roseburg killings: How should Christians respond? 

Utah law now lists sexual orientation and gender identity as protected classes in housing and employment — but, without buy-in from the religious community, it does not include “public accommodations,” a broad legal term used to describe everything from bus services to restaurants and other private businesses.

Legislation modeled after the Utah law, Oesterle said, would be “completely unpalatable to me.” And lawmakers, he added, would be naive to think those weaker laws would be enough to repair the state’s battered reputation.

A sign reading "This business serves everyone" is placed in the window of Bernadette's Barbershop in downtown Lafayette, Indiana on March 31, 2015. The store is one of several who display a sticker stating "This business serves everyone." Indiana's Republican Governor Mike Pence, responding to national outrage over the state's new Religious Freedom Restoration Act, said on Tuesday he will "fix" it to make clear businesses cannot use the law to deny services to same-sex couples. Photo courtesy of REUTERS/Nate Chute

A sign reading “This business serves everyone” is placed in the window of Bernadette’s Barbershop in downtown Lafayette, Indiana on March 31, 2015. The store is one of several who display a sticker stating “This business serves everyone.” Indiana’s Republican Governor Mike Pence, responding to national outrage over the state’s new Religious Freedom Restoration Act, said on Tuesday he will “fix” it to make clear businesses cannot use the law to deny services to same-sex couples. Photo courtesy of REUTERS/Nate Chute *Editors: This photo may only be republished with RNS-INDIANA-LGBT, originally transmitted on Oct. 5, 2015.

He, and others including Eli Lilly & Co. and the NCAA, say they want stronger protections of LGBT rights than the Utah compromise afforded —  including in businesses open to the public.

And there’s no indication that the Utah compromise would please opponents of LGBT rights, either.

Experts across the country say this polarizing problem necessitates compromise, but meanwhile, both sides snipe at each other for refusing to give an inch.

Still, some in Indiana say that no-compromise attitude is more likely to backfire on the most zealous defenders of religious liberty.

That could force the issue — and put Indiana in a position that politically demands full protections.

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Public accommodations include any business or service open to the public. In the civil rights movement of the 1950s and 1960s, some of the most well-known examples of discrimination in public accommodations centered on water fountains, bathrooms, buses and seats at the lunch counter.

But today, the battleground is wedding services. Should a business owner, who follows a religion that disapproves of gay marriage, have to serve gay customers who request wedding cakes or photographs?

In Washington state, the law prohibits discrimination based on sexual orientation in public accommodations. That’s what formed the basis of a widely publicized case against Arlene’s Flowers, a business sued by the state for turning down a gay customer’s request for wedding arrangements.

A judge fined the business for violating state law.

In Utah, where lawmakers could strike deals more easily on housing and employment discrimination, an agreement to extend LGBT rights to public accommodations wasn’t winnable, said University of Illinois law professor Robin Fretwell Wilson.

In Indiana, she said, she has fielded inquiries about the Utah model from Gov. Mike Pence’s office and the team of Al Hubbard and Mark Miles, two influential Republicans working on an anti-discrimination proposal.

But some businesses rebuffed the idea of any proposal that lacks protections in public accommodations, emphasizing that they are advocating for full protections for everybody.

“We stand for equal protections for all Hoosiers, including Hoosiers in the LGBT community,” said Edward Sagebiel, Lilly’s senior director for global corporate communications, reputation and branding.

“Our commitment to fair treatment of all employees, regardless of sexual orientation or gender identity, has not changed and is at the core of what we believe in,” said Bob Williams, senior vice president of communications for the NCAA. “We intend to stand strong with our colleagues in the business community as the fight for equal protections under the law is fought for everyone in the state of Indiana.”

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Many agree the bitterness over RFRA — and damage to the state’s reputation — still lingers.

In Utah, perhaps the most noteworthy advancement of LGBT rights was the inclusion of nondiscrimination protections for transgender people.

And, for the religious liberty side, the state created a workaround for county clerks to opt out of providing wedding services. Clerks had to figure out which of their employees would religiously object and put into place other arrangements for an authorized official to solemnize marriages — all planned out before a problem would ever arise.

That way, nobody says no to a couple. No couple gets turned away.

So, can a similar workaround be done for public accommodations?

Allowing businesses to turn away gay couples, Wilson said, even if they provide a list of other places willing to provide the service, feels too much like the Kentucky clerk Kim Davis refusing to issue marriage licenses.

 “It will feel as offensive as those two guys standing there at her desk being told to wait,” Wilson said.

“There’s so much harm in saying no,” she added. “Even if you and I know we can go across the street. It’s very, very close to saying, ‘I do not like you.’”

Just as the Utah compromise isn’t enough for many Indiana businesses, it may not satisfy religious conservatives, either.

The Alliance Defending Freedom, a national conservative Christian organization, said it’s a “misnomer” and a “farce” to say Utah’s laws forged a compromise.

Litigation counsel Caleb Dalton said he felt as though the religious community did not win many more protections than already afforded under constitutional law.

The Utah legislation wrote in exemptions beyond religious organizations such as churches or parochial schools, to also include any affiliated nonprofits or auxiliary building.

The nondiscrimination law also explicitly preserves First Amendment rights to freedom of expression. That means employees can’t be fired, for example, for supporting anti-abortion causes or going to a gay pride parade.

But Dalton said he would want to see legislation that recognizes people’s “freedom to live and act according to their faiths.”

Ultimately, it all comes back to the underlying question: Can religious liberty and LGBT rights coexist in Indiana?

Indiana University Maurer School of Law professor Steve Sanders says that depends on how you define religious liberty.

“Religious liberty refers to the principle that the government can’t interfere with somebody’s conscience and can’t directly interfere with how they lead their lives,” Sanders said. “But what we’ve seen is Christian conservatives defining religious liberty much more broadly.

“Essentially, they say, ‘If I disagree with something as a matter of public policy, it violates my religious liberty.’ That’s an unworkable definition of religious liberty in a pluralistic society. It runs the risk of making the individual religious believer a law unto himself, or unto herself.”

The religious right, he said, have appropriated the term to make an emotional appeal.

Though it’s too early to say what any kind of proposal in Indiana would look like, it’s clear compromise is on the minds of those working toward a solution.

(Stephanie Wang writes for The Indianapolis Star. Chris Sikich contributed to this story. )

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  • larry

    The “Utah Compromise” and proposed mini RFRA bills are an answer to a question which needs never needed asking. “How can I continue to discriminate against gays under the color of law?”

    If your view of religious freedom entails some entitlement to attack others in service of your faith, go eff yourself. You have no idea what the concept means. You are simply looking for social acceptance to treat people badly and attack their civil liberties.

    All this amounts to is kowtowing to politically important bigots who can’t accept that their prejudices may have consequences.

  • George Nixon Shuler

    Operating a business is not an exercise of religion. The Public Accomodations provisions of civil rights laws are by far the most important as they are the most effective at facilitating social change. Without them, no reputable investor will invest in Indiana. The people refusing services are not religious martyrs as their manipulators falsely claim, but merely bigoted people who feel entitled to a right to hharm those persons they are prejudiced against.

  • Ben in oakland

    Thank you, R&R, for demonstrating clearly why we have laws which forbid discrimination on the basis of religious belief and purely theological concerns.

  • Ben in oakland

    We have had laws which for bid discrimination on the basis of religious belief, yours or mine, for 50 years. We have these laws that every level of government. It is very telling that the first time, the only time, that some sort of “rationale” for such discrimination is being proposed win a certain class of so-called Christian is required to be a decently, act amicably, and without bias towards gay people. Funny how you can reject the entire tea of conservative religious belief, and disciplines no one but the most rabid of fundamentalists. No claims for a religious exception to antidiscrimination laws.

    The Utah law was not a compromise. It was a capitulation to religious bigots, permitting discrimination in public services and housing by the very people most likely to do so.

    These laws must apply to all discrimination on the basis of religious belief. Trying to find exceptions to them merely underlines why we have them in the first place

  • Larry

    Religious freedom means nobody ever has to care what you think God wants or what your religion thinks of others. Nor can you compel people to care under the color of law.

    Nobody gets their rights circumscribed because your religious belief says so.

    If you are so deranged by your religious inspired hatred that you feel unable to conduct business in open commerce to all customers, then the only option is to stop conducting business to the general public. To expect a right to discriminate because you think God says its OK, is immoral and self-serving. Many Christians forget that their views are not the entirety of religious belief in the US.

    “If we say one sin is okay we have to say all sin is okay
    and no sin is okay!”

    Nonsense, you do not treat all sins in the same manner. Some sins are overlooked, even cardinal ones. Yet sharing the existence with a gay person is made a special exception which justifies malicious behavior towards others in a way no other sins do.

  • Jack

    Jesus considered divorce so sinful that he explicitly proclaimed that someone who divorces their spouse and marries another ‘IS guilty of adultery’ – words that are written in the Greek in what’s known as the ‘perfect present participle’.
    This requires the sentence to be read in perpetual present tense, which means that a person remains guilty in Christ’s eyes as long as they remain in their remarried state.
    They cannot simply ask for forgiveness and go on married to another. Jesus clearly and literally says that there is no forgiveness for the remarried because they have shown no true repentance.
    Paul seconds the notion when he gives very clear instructions to divorcees – “Let them remain single.”
    Now, do you support treating those ‘Christians’ on their second or third (or more) marriages the same way you do homosexuals?
    Funny, but most fundamentalist churches don’t. Wonder why that is?

  • Larry

    Except you don’t treat all “heinous” sins with the same behavior. Sins of violence against others such as rape and molestation are frequently ignored or excused by Christians like yourself.

    Idol worship, divorce, adultery or belonging to a sect besides your own were also formerly execution-worthy sins overlooked. To make laws to address such things would violate democratic principles. Ignoring such sins are a necessary part of not living in a society which is not a theocratic dictatorship.

    Christians such as yourself are self-serving as to which sins one ignores and which ones they take action against. In fact, its purely arbitrary. You do not treat all sins with any measure of proportionality or context. Its simply looking for excuses to act badly to others.

    But back to the first part, I don’t have to care whether you think God hates gays, nor do our laws have to conform to such belief. Your religious liberties do not include a right to attack others.

  • Ted

    Business owners have NO right to exploit public taxes to build the roads, water mains, sewers, traffic lights, power grids, and police forces which allow their business to exist, then use religious bigotry to deny access to some of the very people paying for their business to exist.

    People who think public accommodations should be free to discriminate against their customers are the same people who want to get Gubbamint outta their Medicare.

  • Ben in Oakland

    “But homosexuality/sodomy is a particularly rotting decay on society. ”

    I’m so glad to hear that it isn’t about hate, but because we rot society in a particularly heinous way. How could anybody see any hate in a statement which is as divorced from reality as possible?

    Honey, I’m a law abiding, tax paying, productive and contributing member of society. I’ve never been arrested. Havn’t even had a parking ticket in 10 years. My gay coupled friends have adopted several of the cast-off unwanted products of irresponsible heterosexual reproduction. Yet WE’RE rotting society?

    what do you have? Dick Cheney. Bristol Palin. Pedophile priests. Kardashians. Louie Gohmert.

    Here’s what rots society: hate. bigotry. Lies. attacks on your fellow citizens. Theocratic religious belief. Idolatry of a 2000 year old book over facts, logic, experience, and compassion.

    Talk sexual immorality to Kim Davis or Bristol.

    Then get back to me.