Indiana’s religious freedom law hurts Indiana most

Indiana’s religious freedom continues to create controversy and draw outage across the country. The Religious Freedom Restoration Act (RFRA), signed into law by Indiana governor Mike Pence on March 26, prevents the government from impeding a person's religious rights unless it has a compelling government interest and is acting in the least intrusive way possible.

The law, which will go into effect on July 1, may have serious ramifications on LGBT rights. Critics say that the law will allow employers, landlords and business owners to use religious objections to refuse service to gay and lesbian couples because of their sexual orientation.

In the 1990 case, Employment Division v. Smith, the Supreme Court ruled that someone could be fired for using peyote, a hallucinogenic drug, during a religious Native American ceremony, and suggested that governments could establish explicit protections that would exempt people from certain laws if they could prove a genuine religious objection. This ruling gave rise to the federal version of the RFRA, which President Bill Clinton approved into law in 1993. A later 1997 case applying the federal law in the context of other federal laws compelled states to pass their own measures, so that legal protections for religious rights apply to the local and state level as well.

Since then, similar bills have been passed into law in 19 other states with little outrage. However, times have changed, and Indiana’s law has placed the state and its governor in a precarious situation.

Indiana’s largest newspaper, the Indianapolis Star, made its opinion of the law clear with a front page statement in Tuesday’s issue that read, “The Religious Freedom Restoration Act: Fix This Now.”

The law has already begun to hurt Indiana economically. Angie’s List, an online consumer ratings service, halted a $40 million expansion of its headquarters in Indianapolis. And in a Washington Post column, Apple CEO Tim Cook said that laws like the RFRA violate “the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality."

The other area where public backlash has begun to hurt Indiana is in the realm of sports. Connecticut Governor Dannel Malloy instituted a travel ban to Indiana, a largely symbolic measure that has deterred UCONN men’s basketball head coach Kevin Ollie and other members of the coaching staff from attending this week’s Final Four, hosted in Indianapolis.

The Big Ten, a powerful collegiate sports conference that hosts events in Indiana, announced that it will review the law's impact. "The Big Ten Conference and its member institutions believe in promoting an inclusive environment in which athletic competition can operate free from discrimination," a spokesperson at a recent event said.

Indianapolis Colts owner Jim Irsay was quick to distance himself from the law, emphasizing that his organization promotes “inclusiveness, tolerance and a diverse fan base.” The NFL, an organization desperately in need of an image recalculation, announced that it is “in the process of studying the law and its implications.” 

The public, political and sporting backlash against the law has been tremendous, demonstrating how far our society has evolved since the federal law took effect in 1993. However, Indiana's law differs from past RFRA laws in a significant way. In past laws, it has always been unclear whether plaintiffs can cite the RFRA as a defense in lawsuits in which the government isn't one of the parties involved. But Indiana's law significantly expands its scope by allowing people to use religious liberty as a defense in suits involving private individuals and companies, rather than just the government.

Legal experts have argued that, in practice, getting the court to agree that the businesses burden trumps the city’s 'compelling interest' to outlaw discrimination is incredibly rare. However, Indiana’s law may change that by allowing the use of religious infringement as an argument not just against the state, but against your neighbor. 

Facing flack for signing the bill into law, Pence has indicated that he is open to clarifying the law to say it cannot be used to justify discrimination. However, the error of the law is in the inevitable way it will be applied, not in its writing. As University of Baltimore Law Professor Garrett Epps wrote, "The statute shows every sign of having been carefully designed to put new obstacles in the path of equality.” If Pence wants to keep valuable companies and sporting events in Indiana, he will have to go further than clarifying.