Mike Pence, Governor of Indiana and signer of bad laws.
“It’s legalized discrimination!”
“It’s just like the federal law!”
“It just needs to be clarified.”
There’s a lot of digital ink being spilled trying to figure out just what’s going on with Indiana’s new religious freedom law, which passed last week. Here’s what you need to know.
No, the law is not just like the federal Religious Freedom Restoration Act.
There are two main differences. The first is that the law says that any individual or business whose religious conscience has been violated, or is likely to be violated, can use the law as either “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”
Other Religious Freedom Restoration Acts – both at the federal or state level – apply to relationships between individuals and the government. In Indiana, the law applies to interactions between individuals and businesses – and it can be used to preemptively sue someone who you think might make you violate your religious freedom.
The second difference is that Indiana’s law specifies that it doesn’t matter if the religious belief in question is “central” to someone’s religion, which is a wider scope than in federal law.
It’s all about the timing.
Twenty states – and the federal government – have Religious Freedom Restoration Acts. So why is Indiana’s special? Besides the differences listed above, the big difference is timing. Most RFRA’s were passed in the 90s, when gay marriage was barely a glimmer in activist’s eyes. Indiana’s, on the other hand, was introduced right after gay marriage was legalized in Indiana, and in the wake of several high-profile cases of discrimination against gay couples.
Yes, it does permit discrimination.
Governor Pence said: “If I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved.”
That last bit is just untrue – the text of the bill specifically says that it applies to interactions between private individuals. And since the law applies to disputes between private parties, it does in fact permit discrimination. As Slate explains here, that gives individuals who wish to discriminate against gays legal cover in a way that other religious freedom laws don’t.