When Indiana approved a law designed to allow residents and business owners to use their religious beliefs as reason to deny services to some people, the conservative state braced for some fallout. But the response was quicker and harder after a campaign from critics who argued the law discriminates against gays and lesbians.
Within days, Indiana was the target of a social media boycott campaign, threatening its lucrative convention business. Top business leaders from the technology sector slammed the state. San Francisco and Seattle announced they were barring publicly funded travel to Indiana. Connecticut and Washington state announced they would follow suit. Even the NCAA, a temple to what some consider to be the religion of basketball, weighed in, saying it was disappointed in the new law and wanted a clarification before deciding what to do about future events and tournaments.
Indiana legislative leaders are scrambling to contain the potential damage, announcing they will pass language to clarify that the law, which goes into effect in July, does not discriminate against gays and lesbians, despite the fear that it does. Here is a guide to understanding the issue that is a political window into the changing nature of gay rights.
What happened in Indiana?
Gov. Mike Pence, a conservative Republican, last week signed the Religious Freedom Restoration Act, designed to “help protect churches, Christian businesses and individuals from those who want to punish them because of their biblical beliefs,” he said. Twenty states have similar laws, though the exact language differs. Sixteen more states are considering passage of some form of the law.
Isn’t there a federal version of the law? How does it differ from the state laws?
Yes. The federal version of the law was signed in 1993 by President Clinton and was considered a liberal response to a conservative Supreme Court ruling in 1990. The court ruled against Native Americans who argued that their use of peyote was a religious requirement. In effect, the court decided that states could ban the sacramental use of peyote. That changed the legal standard for what states could and could not do in the area of religious practices.
Liberals quickly moved to protect the tribes by passing a measure to protect religious practices from government interference. Two decades later, it is conservatives who are seeking the new laws.
There are differences between the federal and state laws, according to a statement from the office of Sen. Charles E. Schumer (D-N.Y.), who was a sponsor of the federal legislation as a House member. The federal law could be used only if someone was suing the government for violating his or her right to the free exercise of religion. The state laws are broader, applying to lawsuits involving individuals, and could be used by businesses that want to prevent a service because it violates their religious principles.
What do backers of the law say?
Pence has defended his signing of the law, arguing it is not designed to discriminate against anyone. Indiana House Speaker Brian Bosma and state Senate President Pro Tem David Long echoed those complaints at a news conference Monday, saying that other states have not gone through the same backlash as Indiana has.
“What we had hoped for with the bill was a message of inclusion, inclusion of all religious beliefs,” Bosma said. “What instead has come out as a message of exclusion, and that was not the intent.”
Both said they hoped to propose new language to amend the law to meet the criticism that it is discriminatory.
What is the problem with these types of laws?
Gay rights advocates see the whole category of such religious legislation as part of a conservative campaign designed to allow people and companies to opt out of providing services to gays. The frequently cited example is that the law could be interpreted to allow bakers or photographers to refuse to do business with same-sex couples who are legally getting married.
How would this law work?
Religious freedom laws are used in civil lawsuits. In one typical example, a Christian baker, whose faith opposes same-sex marriage, decides not to sell a wedding cake to a same-sex couple. The couple sue the baker, claiming they were discriminated against because of their sexual orientation.
The Indiana law asserts that the government can’t “substantially burden a person's exercise of religion” and that individuals who believe their religious beliefs have been or could be “substantially burdened” are protected from lawsuits. The concept of substantial burden is not defined in the law. It would be up to state courts to decide the issue.
Recently in Oregon, a Christian baker refused to sell a wedding cake to a lesbian couple. That state has rules against discrimination based on sexual orientation, so a state agency eventually ruled that the baker had acted improperly.
That couldn’t happen in Indiana because the state does not include sexual orientation as a protected class. Indiana law protects against discrimination based on race, religion and gender. Twenty-one states do protect against discrimination based on sexual orientation.
Why has there been such a backlash?
Using social media, various groups launched a drive to #BoycottIndiana, a campaign that quickly drew influential supporters, including a “Star Trek” hero, actor George Takei, and other celebrities with huge Twitter followings. Apple Chief Executive Tim Cook and Yelp Chief Executive Jeremy Stoppelman also criticized Indiana’s law.
“These laws set a terrible precedent that will likely harm the broader economic health of the states where they have been adopted, the businesses currently operating in those states and, most importantly, the consumers who could be victimized under these laws,” Stoppelman wrote in an open letter.
Marc Benioff, head of tech company Salesforce, went further. “We are canceling all programs that require our customers/employees to travel to Indiana to face discrimination,” Benioff said in a tweet last week.
The business leaders were joined by another powerful lobby — especially in Indiana — basketball. The NCAA raised questions about the law and its future effect on college basketball playoffs. The current tournament, which annually traumatizes the nation in a rite of spring dubbed March Madness, ends with the Final Four playing in Indianapolis.
If these laws have been around for a while, what's changed?
The biggest change in gay rights has been the steady march of legalization of same-sex marriage, now lawful in 36 states and the District of Columbia. The issue will be argued this term before the U.S. Supreme Court.
“If Gov. Pence had signed this law even five years ago, it would have been a different story,” said Adam Talbot, a spokesman for the Human Rights Campaign, an influential organization that has been involved in fights over gay, lesbian, bisexual and transgender rights. The group was involved in the successful effort to stop a similar law in Arizona last year.
The Indiana law “shines a light on how LGBT issues have changed and how the mainstream of American society doesn’t want to see this type of discrimination enshrined,” Talbot said.
Indiana is also the first state this year to act on a religious freedom law. Arkansas is expected to act this week on its version of a religious freedom measure.
What do polls say?
A Pew Research Center survey last year showed the American public is divided over the issue of providing services in same-sex marriages. About 49% said businesses should be required to serve same-sex weddings, and 47% said businesses should be permitted to refuse service because of religious objections. Most Americans 65 and older (60%) said wedding-related businesses should be able to decline to provide services for same-sex weddings, but most adults younger than 30 (62%) take the opposite view.