Indiana RFRA "fix": protecting existing public-accommodation laws

Can the state of Indiana resolve the state of hysteria that has one pizzeria closed and every politician across the country rushing to weigh in on its actions? With the controversy and anger surrounding the passage of a rather common version of the Religious Freedom Restoration Act (RFRA) crescendoing, the Indiana state legislature has offered an amendment that it hopes will squelch the controversy:

The Republican leaders of the Indiana Legislature said on Thursday that they had agreed on language to amend a religious freedom law and spell out that it does not allow businesses to discriminate against gays or anyone else.

The details were not immediately clear, but Brian Bosma, speaker of the state House, said that the language would make clear that “we value you — gay, straight, black, white, religious, nonreligious. We value each and every Hoosier.”

Indianapolis Star reporter Mark Alesia tweeted out the language in the amendment:

Lost in most of the bitter debate over the RFRA law was the fact that Indiana doesn’t have a statewide public-accommodation law that covers sexual orientation. Gabriel Malor has spent the past week pointing out that this is the problem in Indiana’s laws, not the RFRA law that was just passed. RFRA does not allow for broad discrimination, but the lack of a public-accommodation law might, if people were inclined to conduct that kind of broad discrimination.

That puts the nonsensical rage over the RFRA bill in its proper perspective. No one in Indiana was pursuing that kind of discrimination before, during, or since the passage of the RFRA bill, even though it would have been legal in some parts of the state (some local jurisdictions have public-accommodation laws covering sexual orientation). No one was going to do it under RFRA either.  RFRA, as has been exhaustively pointed out based on more than 20 years’ jurisprudence with these laws, doesn’t undo public-accommodation laws to excuse broad discrimination.

This, however, isn’t quite a public accommodation law. The legislation will make clear that RFRA can’t undo public accommodation laws where they exist in Indiana, but … that’s it. And that would almost certainly have been the case in court anyway; courts have never allowed RFRA defenses for broad discrimination. The actual issue in Indiana remains, as Gabriel explained, in the lack of a statewide public accommodation law, not the protection of religious expression from state mandated actions. (Big thanks to Gabriel for consulting with me on the new legislation, too.)

In a reasonable and rational world, this fix would resolve the conflict, at least as framed by the angry opponents of the RFRA law over the last couple of weeks. The legislature has made clear that RFRA can’t be used to conduct broad discrimination on the basis of sexual orientation, while allowing those who choose not to participate in specific events a potential defense against state and tort action for their refusal even where public accommodation laws exist. Note that I emphasize potential, because RFRA isn’t a card that people can wave to do whatever they want. Rather, it requires judges who hear these cases to apply strict scrutiny to claims involving sincerely held religious beliefs, whether the state has a compelling interest in intruding on them, and whether they’ve used the least-intrusive method of satisfying the compelling state interest. This amendment provides a proper balance between the state’s interest in equal service while protecting religious expression. It still leaves open the gap in public accommodation laws, but that didn’t seem to bother Tim Cook, NCAA, NASCAR, and any number of politicians and pundits about Indiana prior to the passage of RFRA. I wonder why that might be?

Do we live in a reasonable and rational world? The unblinkered rage that forced a pizzeria to shut down for the protection of its owners and employees for answering a reporter’s hypothetical question suggests not. But perhaps there will be an opportunity for people to calm down, take a deep breath, and realize that the RFRA controversy has been mainly a media-fueled Outrageous Outrage of the Week.

Update: The NCAA, which did its best to fan the flames of this moral panic, endorsed the move shortly afterward:

Maybe they’re looking for a way out too.

Update: Angie’s List CEO Bill Osterle is less than impressed:

Statement from Angie’s List CEO Bill Oesterle: ‘Our position is that this fix is insufficient. There was no repeal of RFRA and no end to discrimination of homosexuals in Indiana. Employers in most of the state of Indiana can fire a person simply for being a lesbian, gay, bisexual, transgender or questioning. That’s just not right and that’s the real issue here. Our employees deserve to live, work and travel with open accommodations in any part of the state.’

If the fix is insufficient, it’s because RFRA wasn’t the problem in the first place. It’s the lack of a statewide public accommodation law, which existed before RFRA, and while Angie’s List had no apparent problem making money in Indiana.

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