RFRA fix does not widely extend discrimination protections for LGBT, experts say
Kristine Guerra and Tim Evans,
tim.evans@indystar.com 9:18 p.m. EDT April 2, 2015
The changes to the state's embattled "religious freedom" bill would only offer anti-discrimination protections for gays and lesbians in 11 Indiana communities where such protections already exist, legal experts say.
The amendment, which Gov. Mike Pence signed Thursday, would prevent Christian bakers, florists and other similar businesses from denying services to same-sex couples who are seeking to get married. But only in communities, such as Indianapolis and Bloomington, that already have local ordinances that prohibit discrimination based on sexual orientation, legal experts on both sides of the debate agree.
In the rest of Indiana, discrimination against gays and lesbians still is not expressly prohibited, said Daniel Conkle, a professor at Indiana University Maurer School of Law.
"The law still has a gap in Indiana in that we do not have, even with this amendment, a statewide protection for gays and lesbians," Conkle said. "It does not itself prohibit a statewide discrimination based on sexual orientation."
What the law does is ensure that religious objections protected under Indiana's Religious Freedom Restoration Act, or RFRA, cannot be used as a defense in a discrimination lawsuit in communities that already have local human rights ordinances, experts say.
Camilla Taylor, counsel for Lambda Legal, an LGBT legal organization, said the law doesn't really add any protections.
Taylor said all the "fix" did was eliminate a provision in the original law that would have over-ridden local anti-discrimination ordinances that included protections based on sexual orientation and gender identity. The status quo remains in the rest of the state, where discrimination against gays and lesbians is not expressly prohibited because they are not covered by statewide civil rights protections.
Fixes to the law, which were hashed out in private meetings Wednesday between the state's top Republican lawmakers and business leaders, mark the first time that "sexual orientation" and "gender identity" are explicitly protected in state law in the context of anti-discrimination.
The Indiana House and Senate approved the amendment Thursday. Pence signed it shortly thereafter.
The amendment prohibits a person, an organization or a business from refusing to provide goods, services, employment or housing to someone based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation and gender identity.
It exempts churches, nonprofit religious organizations and affiliated schools, as well as rabbis, priests, preachers, ministers and pastors.
Because of those exemptions, Taylor said, it's still possible for religious groups to use RFRA as a legal rationale for denying services to gays and lesbians, even in those communities where local protections exist. For instance, a pastor would not be required to perform a gay wedding if he raised religious objections.
Negative reactions about RFRA snowballed after Pence signed it last week. Changes to the law were driven by a national backlash that threatened to paint Indiana as a place that discriminates against gays and lesbians and ruin its reputation as a welcoming and hospitable state.
Still, the changes leave some social conservatives unhappy because in communities with discrimination protections for gays and lesbians Christian bakers and florists likely would have to provide services for same-sex weddings. Backers of RFRA asked Pence to veto the changes and called them an attempt to destroy religious protections in the state.
The changes also fall short of satisfying civil rights advocates and some legal scholars.
While experts agree that the inclusion of sexual orientation and gender identity in state law is historic, they also believe it's only the first step, a short-term fix, in quelling the national firestorm that Indiana has been catapulted into. Some who oppose RFRA say lawmakers fell short by failing to make LGBT Hoosiers a protected class of citizens.
"This self-inflicted crisis will not end until the Indiana Civil Rights Act is amended to ban discrimination based on sexual orientation and gender identity," said Robert Katz, a professor at Indiana University Robert H. McKinney School of Law.
Jennifer Drobac, another McKinney law professor, believes there's hope that change will come.
"The power elites in Indiana now understand that people are watching," she said. "And it's a message to the rest of the nation that most Hoosiers are friendly, welcoming people, and they will not stand by while discriminatory lawmakers and power brokers try to hijack our state."
But for now, amending the state's Civil Rights Act is a fight for another day, Conkle said. The RFRA changes, he added, keeps intact the legislation's main goal of protecting minority religions.
RFRA, or Senate Bill 101, prohibits the government from substantially burdening a person's ability to practice his or her religion — unless the government can show it has a compelling interest to do so. And the government must choose the least restrictive way to achieve its goal.
The changes also are sufficient to calm the storm that has existed in Indiana over the past week, Conkle said.
"I would hope that in the future," he said, "perhaps when times are a bit calmer, the legislature might revisit the issue (of statewide LBGT protection)."
