Indiana's Religious Freedom Restoration Act Stirs Controversy Throughout the Country

UPDATE (April 1, 10:30 AM): Governor Pence announced on Tuesday night that he will change the wording in Indiana's new Religious Freedom Restoration Act to inlude language that will prevent discrimination based on sexual orientation.

"This issue for me is first about religious liberty," Pence stated on Fox News. "Indiana is open for business. If we have to make adjustments to this law to make it clear that this law was never intended to give businesses the right to turn away customers on the basis of sexual orientation, we will fix that."

Pence called for a revised version of the bill on his desk by the end of the week.

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Indiana's recently passed Religious Freedom Restoration Act (RFRA) has been bringing about controversy with strong voices of support and opposition throughout the country. The RFRA was signed by Indiana Governor Mike Pence last Thursday morning, and will begin taking effect on July 1.

Indiana's RFRA, or Senate Enrolled Act 101, states that "a governmental entity may not substantially burden a person's exercise of religion," and that it may only do so if the government shows "a compelling interest" and that it is "the least restrictive means of furthering that compelling governmental interest."

Governor Pence stated that he signed the bill because he "support[s] the freedom of religion for every Hoosier of every faith," and "to ensure that religious liberty is fully protected under Indiana law."

"This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it," Pence continued. "In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation's anti-discrimination laws, and it will not in Indiana."

The federal RFRA was passed in 1993 with overwhelming bipartisan support from both the House and the Senate, and was signed by then President Bill Clinton. The Supreme Court ruled in 1997 that the federal law will only be applied to federal cases, and thereafter, 19 states before Indiana have signed their own forms of Religious Freedom Restoration statues into state laws.

However, as the Indiana bill was signed into law during a time in which debate had been rampant regarding business owners who have refused to offer services for same-sex weddings, many have been expressing opposition to the bill because they believe it perpetuates discrimination, particularly against the LGBT. Hundreds gathered to protest the law in Evansville, Indiana, on Monday. On the same day, nine CEOs of major businesses, including Anthem, Indiana University Health, and Salesforce Marketing Cloud, wrote a one-page letter to Pence to change the wording of the bill to include a clarification that it does not promote discrimination.

"As leaders in the Indiana business community, we call on you to take immediate action to ensure that the Religious Freedom Restoration Act will not sanction or encourage discrimination against any residents or visitors to our state by anyone," the signatories wrote.

"This un-American law, allowing businesses to refuse service to gay and lesbian customers, sets Indiana and our nation back decades in the struggle for civil rights," said Lee Saunders, the president of AFSCME, which decided to pull out its October event that was initially planned to be held in Indianapolis.

However, supporters of the law argue that this is a necessary protection, and that it does not promote discrimination as some may suggest.

"Contrary to what some critics have suggested, [the RFRA] does not give anyone a 'license to discriminate,'" stated Rick Garnett, a law professor at University of Notre Dame.

Garnett went on:

"In practice, over the last two decades or so, religious freedom restoration acts have been used not to excuse illegal discrimination or harmful behavior but instead to secure humane accommodations, such as allowing members of a small Brazilian church to possess plants that are necessary to make sacramental tea, or preventing the government from firing a Rastafarian with a traditional haircut, or respecting a family’s religious objections to an autopsy of their loved one."

In a recent debate on NPR's Air Talk, Jennifer Pizer, the senior counsel and law and policy project national director for Lambda Legal, argued that the concern over Indiana's RFRA arises from the fact that there are no non-discrimination laws in place in Indiana at the state level, though there are some at the local level. She also argued that Indiana's law is broader than the federal RFRA, including all commercial businesses, in contrast to the federal RFRA which focuses on individuals and closely held businesses.

In the same debate, John Eastman, a professor of law and founding director of the Center for Constitutional Jurisprudence at Chapman University, argued that refusing to serve a same-sex couple or providing a service to a same-sex couple would not "definitely legally protect" the business owner in the discriminatory act. For example, if a cafe owner were to refuse service to someone who appears to be gay, that would not be legally protected, Eastman said.

"The anti-discrimination and public accommodation statutes probably make that illegal, and that would probably pass the compelling governmental interest even under the RFRA that Indiana passed," Eastman said.

Eastman further qualified that the law is "designed to protect" parties from participating in an action that they have "a strong moral and religious objection to," and any action that would force them to violate their religious beliefs.