Discrimination against gay people in Indiana?

I applaud Indiana Governor Mike Pence for taking a courageous stand in defense of our first freedom—religious liberty. Gov. Pence has been on the hot-seat ever since he signed the Religious Freedom Restoration Act (RFRA) into Indiana law last week. Not only did he sign the bill into law, but he also had the moxie to go on national television to defend the law in the face of scurrilously unfair criticism (see video above).

Critics allege that this law allows citizens to “discriminate” against gay people. The accusation is completely misinformed, and the media have played a big part in the dissemination of ignorance about what this law actually does and doesn’t do. I won’t rehash the law here, but I will direct you to Joe Carter’s helpful explainer as well as that of John McCormack who puts the Indiana law side-by-side with the nearly identical federal law which was signed into law by Pres. Clinton in 1993.

The law does not in fact legalize discrimination against anyone. Nevertheless, it has been misrepresented as if it does. Nevermind the fact that it’s been a federal law for over 20 years. Nevermind the fact that 19 other states have passes RFRA’s as well. Critics are denouncing the Indiana law as if it were some new departure in discrimination. But nothing could be further from the truth.

University of Virginia law professor Douglas Laycock is a supporter of gay marriage, and yet he supports Indiana’s RFRA. Why? Because the law has nothing to do with discriminating against gay people but with defending religious liberty. Laylock explains:

So what kinds of cases are RFRAs really about? They are about churches feeding the homeless; sometimes the city or the neighbors object. They are about Muslim women wearing scarfs or veils. They are about Amish buggies. They are about Sabbath observers. They are about church bells. They are about all the unexpected ways in which a great diversity of religious practices come into conflict with a great diversity of laws and regulations. And usually, the government wins. These laws have been under enforced, not over enforced.

So if these RFRA’s are not really about discriminating against LGBT people, then why are some people claiming that they are? I imagine that some people are just misinformed. Others likely know better but are just lying. Laylock says there may be a more sinister motive:

Most of the activists in this fight, on both sides, want liberty and justice only for their side. They want to crush the other side.

Laylock’s piece is an absolute must-read, and you can do so here.

26 Responses to Discrimination against gay people in Indiana?

  1. Johnny Mason March 30, 2015 at 8:33 am #

    Here is a good article on who laws like this help.

    http://thefederalist.com/2015/03/30/meet-10-americans-helped-by-religious-freedom-bills-like-indianas/

    It’s easy to see who the hate mongers and bigots are in this debate. It is easy to see who is against freedom.

  2. Curt Day March 30, 2015 at 9:10 am #

    There are two tragedies here. The first one is the use of words to hide discrimination. Does Indiana’s recently signed RFRA law allow businesses to refuse to serve homosexuals as persons or as participating in legal functions because of the homosexuality involved? What is very important to realize here is that many of the public goods and services that could be refused are only offered through the business community. In addition, if one business is allowed to withhold public goods and services because of the sexual orientation of the customer, many others, if not all, have that same permission. Thus, there is the potential that a customer or group of customers could not have the same access to public goods and services that others could.

    Now if you replace all references to anything homosexual in the above paragraph with a fill in the blank, what kind of law do we have here based on our nation’s history?

    But that is the first tragedy. The second tragedy is how many dire problems and serious sins, especially societal sins, are being ignored because we are so fixated on sexual sins? We have a growing wealth disparity along with an economy that relies on the exploitation of people and the environment. We still have serious problems with racism in this country. And we have a foreign policy that has, for almost our whole history, relied on the rule of force rather than the rule of law. So though we must pay a certain amount of attention to sexual sins, why aren’t we discussing those other problems and sins? Doesn’t this indicate that we might be obsessed? Are we acting like the pharisee in the parable of the two men praying?

    • Johnny Mason March 30, 2015 at 9:34 am #

      Curt, Indiana has no law protecting gay people from discrimination. Prior to this bill being passed, businesses could freely refuse to serve gay people. Given the fact that there has been no outcry of this kind of discrimination in Indiana, or the fact that no RFRA law in the country has ever been used successfully to defend discrimination against gays. This law does not mention sexual orientation, gay marriage, or anything close to that. It protects people of faith from government coercion. Similar laws have been passed or enshrined in their Constitution in 30+ states. It has been passed with broad bipartisan support by the likes of Bill Clinton, Chuck Schumer, and Barack Obama. This law should be applauded.

      This freak-out by the left and the gay mafia is nothing more than hatred and animus directed towards people of faith. The real tragedy here is that supposed Christians and “defenders of liberty and tolerance” are perfectly fine with that.

      • Johnny Mason March 30, 2015 at 9:53 am #

        Should read: “Given the fact that there has been no outcry of this kind of discrimination in Indiana, or the fact that no RFRA law in the country has ever been used successfully to defend discrimination against gays, the outrage around this bill seems very manufactured.”

      • James Stanton March 30, 2015 at 11:05 am #

        Johnny, it’s hard to take claims of hatred and animus seriously when you’re using terms like “gay mafia”.

  3. Kent McDonald March 30, 2015 at 10:25 am #

    Thanks for bringing the truth to light on this overlyhyped situation. So many people only see what the main stream media report (which tends to be onesided) that truth is lost in the process.

  4. Michael Jefferson March 30, 2015 at 10:47 am #

    Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens. This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”

    • Roy Fuller March 30, 2015 at 12:30 pm #

      Thank you for pointing out what is the difference between Indiana’s law and those versions in other states.

      • buddyglass March 30, 2015 at 5:37 pm #

        Guess I should have read the entire thread before commenting below. Doh.

  5. James Stanton March 30, 2015 at 11:02 am #

    “Because the law has nothing to do with discriminating against gay people but with defending religious liberty”

    I don’t know how you can argue, in good faith, that these are mutually exclusive. I support clearly defined religious liberty laws but the essence of this law is to provide religious owners with an out. To argue that it doesn’t have anything to do with discrimination is simply an attempt to avoid the ugliness behind that word.

    Secondly, the reason this current law is provoking a backlash when other similar laws over the decades hasn’t is due to entirely to the shift in cultural attitudes. Ignoring that is obfuscation.

    • David Howard Gleit March 31, 2015 at 10:06 am #

      Well said James. It is precisely this cultural shift – wherein LGBT rights against discrimination are viewed as equal to others’ (minorities, women, the elderly, etc) rights against discrimination – that has so disturbed parts of the religious community, and led to these new laws. This brouhaha boils down to that one issue: does anyone, for religious reasons, have the right to discriminate against LGBT people? The greater society now – and only recently – says “no,” but a part of the faith community still says “yes.”

  6. Johnny Mason March 30, 2015 at 3:12 pm #

    Ryan Anderson has a good article on this that highlights the hypocrisy of the left (especially Tim Cook) on this.

    “This debate has nothing to do with refusing to serve gays simply because they’re gay, and this law wouldn’t protect that. But should the government force a 70-year-old grandmother to violate her beliefs? Should the government coerce her into helping to celebrate a same-sex wedding?

    A Religious Freedom Restoration Act could protect her. But it might not. The law doesn’t say who will win—only that a court should review, using a well-established balancing test, and hold the government accountable to justify its action.

    What’s most amazing in the debate over Indiana is the level of hypocrisy. Businesses are saying they’ll boycott Indiana over this religious liberty law. So they want the freedom to run their businesses in accordance with their beliefs—so they’ll boycott a state that tries to protect that freedom for all citizens? Do they not see that the baker, photographer and florist are simply asking for the same liberty?

    Will Americans who believe what America had always believed about marriage—that it’s a union of husband and wife—be tolerated in the United States?

    Indeed, Apple itself has exercised this freedom (or is the proper word, according to Cook, “discrimination”?). After all, Apple removed the Manhattan Declaration app from its App Store. Apple decided that a Christian app bearing witness to the dignity of unborn life, the nature of marriage as the union of husband and wife and the centrality of religious liberty was incompatible with its mission. So they “discriminated” against the Manhattan Declaration… Cook, however, sees no tension when he writes “Our message, to people around the country and around the world, is this: Apple is open. Open to everyone, regardless of where they come from, what they look like, how they worship or who they love.” Apparently unless they are traditional Catholics, Evangelicals and Orthodox Christians who support the Manhattan Declaration. Then Apple’s message is “Apple is closed. Closed to those with beliefs we disapprove of.””

    http://dailysignal.com/2015/03/30/apple-ceo-tim-cook-is-a-hypocrite-and-wrong-about-indiana-religious-freedom/

    • Lynn B. March 30, 2015 at 6:44 pm #

      Johnny Mason: Thanks for the link. At first, I thought it was helpful in that it explains that this is specifically about servicing gay weddings and not Christians serving gays in other ways in their businesses. Then it occurred to me that landlords encounter a similar problem and likely others that do not immediately come to mind. Someone on another blog linked to an article about a Christian Pediatrician who declined to accept the child of a lesbian couple as a patient. This is far reaching, and try as we might to protect our religious freedoms in the courts at the end of the day we all know the Christians are going to lose.

      It occurred to me when reading the article you linked that I would like to boycott Apple, but I am already not an Apple customer (smile).

      Then I thought of Randy Alcorn’s novel, “Safely Home.” I read it long ago, but the story line is something on the order of an American and a Chinese man attend grad school together. Years later the American, a successful and wealthy businessman, has occasion to visit his old friend in China only to learn he is not a college professor as he had planned. He is a key maker because that is the best job available to an openly professing Christian. We would do well to remember that there is a price to pay in following Jesus Christ and our Savior promised the world would hate us as they hated Him. The religious freedom of America’s past was an anomaly.

      http://store.epm.org/product/safely-home

  7. buddyglass March 30, 2015 at 5:34 pm #

    I’ve read elsewhere that the difference between Indiana’s RFRA and the federal one is that it explicitly governs situations between private parties, whereas the other ones are intended to prevent the *government* from trampling peoples’ religious liberty.

    Any merit to that argument? Here’s Paul Waldman making it:

    http://www.washingtonpost.com/blogs/plum-line/wp/2015/03/30/answering-five-questions-about-indianas-new-discrimination-law/

  8. Jeanine Fogler April 1, 2015 at 8:32 am #

    So sick of this whole debate. Please make it go away. The media loves to create drama and keep people polarized by asking questions that inflame and misrepresent both sides. The Governor was right about one thing: tolerance is a two way street. But let me finish that thought: so is hatred!

  9. Mitch Dean April 3, 2015 at 1:28 am #

    Denny,

    I figured you’d be at it with the RFRA hoopla. In response to your decision to showcase the support of Douglas Laycock, a smart law professor who teaches at a law school that is ranked #8 in the country and has a $165 million endowment, I say consider the arguments advanced by Katherine Frank, a smart law professor who teaches at a law school that (if we’re counting) is ranked #4 in the country and has a $268 million endowment.

    To your many followers who will undoubtedly say of Frank “Oh that woman is just a New York City pinko commie who is sticking her nose in other people’s business and needs to shut up” I would suggest considering the fact that Frank was actually asked by a member of the Indiana legislature to analyze the new RFRA before it was passed and the fact that the letter providing the requested analysis was signed by 12 Indiana University law professors (not to mention 2 of your buddy Laycock’s fellow law faculty members from UVA). You can read the letter here http://tinyurl.com/nlqr8xd

    To your adamant insistence and the adamant insistence of others that Indiana’s new RFRA does not target gay people and has nothing to do with LGBT discrimination, I say the timing gives this law, and its supporters, away. It couldn’t be any more obvious that this is just a nasty reaction to the near certainty that same-sex marriage will soon be legal in every state. Otherwise, why exactly did it take 20 years after the passage of the federal RFRA for the conservative legislators of Indiana and Arkansas to wake up and panic about the deplorable condition of religious liberty in their states? Why you ask? Well, because, for a good part of the past 20 years, the supporters of this law (like most people) never thought a gay couple would be able to legally marry. Isn’t it amazing that as long as that was a ridiculous and far-fetched suggestion, these legislators never got around to safeguarding the suddenly all-important religious liberty of their constituents? Not so amazing. Not so amazing at all when you consider that these legislators and their fellow evangelicals are absolutely drowning in white-hot fury over the presumptive outcome of the marriage debate and RFRA is just the next way to mount an attack on the enemy.

    If you needed any further proof that, at least in Indiana, RFRA is (at least in part) about discriminating against gay people, consider briefly that, Pence was asked if he’d support resolving LGBT concerns with Indiana’s new RFRA by expanding the state’s anti-discrimination laws to protect citizens from discrimination based on sexual orientation. Consider further that he was also asked if he would support resolving these concerns by including in the law language stating that RFRA neither establishes a claim or defense to a claim under any state or federal anti-discrimination statute. Consider further that, in response to both questions, he answered no. Really? Really.

    Finally, if you or anyone else are inclined to praise Governor Pence for this interview, riddle me this: Why did he refuse more than a dozen times to answer the question “yes or no, should it be legal discriminate against a gay person in Indiana?” If there are conflicting positions with some people saying this is about anti-gay discrimination and some people saying it is not, how can it be inappropriate for a journalist to ask that question? It’s not and it’s not hard to see why Pence didn’t answer it. Among other things, he’s an arrogant jerk who is mad that he’s being called to account for something. And last but certainly not least, let’s not forget the way he’s practically salivating for the next GOP nomination. That may actually be the most disgusting thing about him. If people say horrible things that they genuinely believe, you have to have a base-line respect. But that’s not what this is. This is basically a really expensive prostitute, willing to do and say anything to get to be President.

    I think that about covers it for most of your RFRA posts.

    Oh, and Happy Easter!

    • Denny Burk April 3, 2015 at 2:34 am #

      Mitch,

      Yes, there are two sides to this, which is why we need the balancing test that the RFRA provides. The government needs to show a compelling interest before coercing someone to violate their religious beliefs, and they need to show that they’ve done so in the least restrictive means possible. That’s all the RFRA does. It doesn’t decide a winner or loser in any particular case. It just gives a balancing test.

      I don’t know why Pence botched that interview and that question so badly. He should have answered, “No, I don’t believe that people should be discriminated against because they are gay. But neither do I think that religious business owners should be coerced into participating in something that their faith forbids. We need an approach that balances these competing rights on a case by case basis, and that’s what the RFRA provides.” That is the right answer, and I wish he would have said that.

      In the end, Governor Pence caved and signed a “fix” that no longer allows religious dissent on the issue of gay marriage. As the law stands now, if a religious business owner is sued for refusing to participate in a gay wedding, he has no legal grounds for defense. The RFRA no longer applies to him. That’s the result of the “fix.”

      I don’t know anyone who is arguing for discrimination against people based on their sexual orientation. That’s certainly not my view or that of the other Christians I know. That’s not the view of the florist in Washington State or of the baker in Colorado or of the photographers in New Mexico. All of them were happy to serve gay customers and did serve gay customers. They simply did not feel that they could lend their creative expression to a gay wedding. They are not putting up “no gays allowed signs.” They simple declined to work a gay wedding, and that was the conflict. That is a far cry from Jim Crow era discrimination. But most people are unaware of what is really going on in these cases, and that is why there is such a backlash.

      The florist case in Washington State is instructive. She sold flowers to that gay couple for nine years. She even employed gay people in her store. Yet when the couple asked her to design arrangements for their wedding, she told them regretfully that she could not do it because of her faith. In my view, the civil thing would have been for the couple to let it go. After all, they had been friends with her for nine years! But that’s not what happened. The attorney general sued her, and the gay couple sued her. This 70-year old grandmother is now at risk to lose everything for following her conscience. I don’t think most Americans agree with that. But that’s where we are.

      Thanks for chiming in.

      Denny

      • Tim Batchelor April 8, 2015 at 11:32 am #

        HI Denny, thanks for writing on these subjects and helping us think about how we can best articulate our convictions on these matters. Would the ssm folks believe it is discrimination if the baker, florist etc refused to be a part of a “same sex wedding” between two men or two women who were not homosexual but were simply wedding for convenience? The issue is not the sexual orientation of the participant but the ceremony. Why can we not articulate that the issue is that no individual or business should be forced to participate in something they see not only as sinful but as sacrilegious (a word we need to be using)?

        • Denny Burk April 8, 2015 at 11:42 am #

          Tim, It is fascinating that your have made this comment today. I was just thinking about writing a post on this very issue. The “discrimination” that the florists, bakers, etc. is not really based on sexual orientation. It’s based on the definition of marriage. If two heterosexual men were going to get married (say for some tax benefit), the Christian service provider would still decline to participate. The bottom-line issue is not the orientation but the wedding. Good comment.

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