Indiana Opens Its Doors to Discrimination

Why all the confusion?

Photographer: Andrew Harrer/Bloomberg

If only Indiana Governor Mike Pence were less confused, he might also be less surprised. His surprise about the reaction to Indiana's new religious-freedom law stems from his confusion about what it does.

In an interview Sunday about the Religious Freedom Restoration Act, which he signed last week, Pence said the public outcry over it is a big misunderstanding. “I’m just determined to clarify this,” he said, then proved unwilling -- or incapable -- of doing so. Asked several times whether the new law permits a florist to refuse to accept orders for same-sex marriages, he mentioned that President Bill Clinton signed a similar law, that 19 other states have adopted laws to protect religious freedom, that there were "no kinder, more generous, more welcoming, more hospitable people in America than in the 92 counties of Indiana."

That may well be true, though there are at least 49 other governors who might disagree. At any rate, Pence's everyone-is-doing-it defense doesn’t stand up to scrutiny.

The federal Religious Freedom Restoration Act of 1993 applies to government mandates, not transactions between private citizens. Only one other state -- Texas -- has adopted a law that allows people and businesses to cite religious freedom as a defense against claims of discrimination by private citizens and entities.

Nor does the federal law explicitly grant religious freedom to businesses, as Indiana’s law does. Pence suggests that his state is merely codifying the Supreme Court’s Hobby Lobby decision, which allows some corporations to deny employees some health insurance benefits that conflict with the owners’ religious beliefs. Indiana's law goes much further. The law kicks down the door to religious discrimination that the Supreme Court unwisely cracked open.

Pence’s decision to sign the bill has brought rebukes from many business leaders, such as Apple Chief Executive Officer Tim Cook. One company has put on hold a $40 million expansion of its Indiana headquarters. The NCAA, which is based in Indianapolis and holding its Final Four basketball tournament there this weekend, suggested that the law could prompt it to move future events and operations out of state.

The governor, who is reported to be mulling a run for president, says he is surprised by the backlash. He shouldn’t be. When the Arizona state legislature passed a religious-freedom bill last year, the public uproar and opposition from the state’s business interests led Republican Governor Jan Brewer to veto it.

On Monday, Indiana’s Republican House leader echoed the governor and said he would support a bill to “clarify” that businesses cannot deny services to citizens based on their religious beliefs. But Pence and Republican legislators have opposed a bill that would prohibit discrimination against gay and lesbian citizens.

Federal law already provides protections for religious freedom, but not for gay and lesbian citizens, because Republicans in Congress have blocked them. Until Republicans (in Indiana and elsewhere) drop their opposition, the public will be justified in viewing their push for religious-freedom laws with distrust.

The battle over such laws is just beginning. If further religious protections are needed, they should not come at the expense of equal rights -- and any laws that are passed should make that perfectly clear.

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