Discrimination Is Not Religious Freedom

Religious freedom is paramount in the United States of America; it is enshrined in the First Amendment and protected by both a federal law and individual laws in 20 states as of this week. Recent legislation passed in Indiana, ostensibly intended to protect religious freedom, goes far beyond that point, allowing discrimination against LGBT individuals in the name of religion. While we support Indiana’s right to pass a religious objections law, this is not what it should look like.

Whereas the federal Religious Freedom Restoration Act and the 19 other individual state versions apply to cases brought by individuals against the government itself, Indiana’s RFRA explicitly defines “person” to include businesses and does not require the government to be a party in the case. Indiana is the only state whose RFRA emphasizes both of these points. The intent of the law is clear: To allow business owners to refuse service to LGBT individuals by claiming that their “exercise of religion has been substantially burdened.” Even in Texas, where the RFRA is most similar to the Indiana version, the law is explicitly worded to preclude its use as a defense in a civil rights case—a clarification that is nowhere to be found in Indiana’s new law. If the true purpose of the law were to protect religious freedom, the law would have mirrored the versions passed in other states.

We find it difficult to believe that this bill was conceived and worded so precisely with the innocent intentions that Indiana Governor Michael R. Pence has claimed. In fact, a group called Advance America lobbied in favor of the law by explicitly arguing that it could help businesses “[refuse] to participate in a homosexual marriage.” Though Governor Pence has promised to fix the bill, it should never have reached this stage; this is emphasized by the history of past RFRAs. Last year, Arizona’s Republican Governor Jan Brewer vetoed a bill that was a model for Indiana’s RFRA. Similarly, Arkansas Governor Asa Hutchinson, also a Republican, has asked his legislature to make changes to a similar bill recently passed in his state before he signs it.

This is neither a partisan issue nor a religious liberty issue; it is a civil rights issue. It is clear that the Indiana law is inherently and deliberately discriminatory. Governor Pence has also stated that he will not pursue a civil rights bill extending protections to gays in Indiana. Allowing personal discrimination in the name of religious freedom benefits no one.

The ultimate solution is simple: A federal civil rights law that extends legal protection from discrimination to LGBT individuals should be passed by the federal government without delay. If individual states—such as Indiana—cannot be counted on to defend civil rights, the federal government must step in to do so. Such a federal law would preclude state RFRAs, like Indiana's, from being used in ways that allow discrimination; it would also offer a clearer legal recourse to LGBT individuals who have been discriminated against. In the short term, an immediate fix is desperately needed to Indiana’s religious freedom law; looking forward, federal action is necessary to prevent similar laws from being passed or enforced in the future.