In caving to corporate and elite pressure to “fix” Indiana’s Religious Freedom Restoration Act, Gov. Mike Pence and the rest of the state’s laughingstock Republican leadership have ironically bungled into amending it in a way that now makes Indiana the most hostile state in the country to the conscience rights the original law was designed to protect.
The hastily and stupidly crafted amendment they enacted during Holy Week provides that Indiana’s RFRA can never be used as a defense in any gay rights or other civil rights proceeding by anyone other than a clergyman, church, or religious institution. It’s in the same vein as a DC City Council proposal that would force religious organizations to hire or provide resources to people who diametrically oppose those organizations’ missions, which hundreds of congressional lawmakers are actively opposing, using Congress’s right to decide DC laws. Of course, until the advent of gay marriage there hadn’t ever been a single instance in any of the other 31 states with RFRA statutes or equivalent judicial protections using RFRA as a defense in a gay-rights case, much less in a case involving racial or other alleged discrimination.
RFRA protections have been raised, however, without success, in a series of recent cases around the country in which government authorities, acting under state or local gay-rights laws, have ordered creative professionals such as photographers, florist,s and cake designers with religious objections to same-sex marriage to nonetheless provide their services for or at these wedding ceremonies or face crippling fines and “rehabilitation.”
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While courts in other states have rejected this defense, Indiana is now the only state to statutorily prohibit the defense from even being raised in these cases. In other words, it is the first and only jurisdiction in the country to explicitly enshrine in its statutory law that creative professionals must participate in same-sex weddings or face civil and potential criminal sanctions. (None of the gay-rights laws in the three Indiana cities that have them—Indianapolis, Bloomington, and South Bend—currently carry criminal penalties, but the “fix” gratuitously provides that if such punishments are ever added, creative professionals who object to servicing same-sex weddings will be subject to them.)
In “fixing” the original RFRA statute, Pence and the Indiana Legislature could have actually both improved it and blunted some of the political fallout by adopting a more straightforward law providing explicit conscientious-objector protections only to creative, intellectual, and religious professionals who do not wish to provide such personal services for or at a same-sex wedding. RFRA legislation is a clumsy and ineffective way to protect these dissenters. (As noted, courts have rejected RFRA defenses in these cases.) Such a law would be less subject to the demagoguery of the last week—the “gays turned away from lunch counters” parade of horribles. Even some anti-RFRA liberals had suggested that they would have grudgingly accepted this more-limited but effective approach.
But that’s not how Pence and his clueless company chose to proceed. Now Indiana—not DC, not California, not Massachusetts, not Vermont—is the most hostile state in the country to freedom of conscience in these cases. The irony would be comical if it weren’t so sad.