April 8, 2015
On March 26, 2015, in a private ceremony with no media in attendance, Indiana Governor Mike Pence signed into legislation SB 101, Indiana's Religious Freedom Restoration Act, or RFRA. Days before, the measure that lawmakers had fast-tracked in the Indiana Senate also passed in the Indiana House of Representatives—despite six attempts to amend the bill to mitigate the most harmful effects. When Gov. Pence signed the RFRA into law, the public outcry, from grassroots supporters, businesses, convention leaders, sports organizations, faith leaders, national and local civil rights organizations and celebrities in and outside Indiana, was immediate and deafening. This backlash forced the governor and lawmakers to update the law to recognize, for the first time in history, protections in Indiana based on sexual orientation and gender identity. Unfortunately, these protections currently exist only in a few local human rights ordinances.
Several communities in the state of Indiana have human rights ordinances that provide enforceable protections against discrimination on the basis of sexual orientation or gender identity, including Indianapolis/Marion County; Lafayette/West Lafayette/Tippecanoe County and New Albany. HROs also exist in other communities, including Michigan City, South Bend, Fort Wayne, Muncie, Terre Haute, Bloomington/Monroe County and Evansville, and are being considered in several others. The landscape is changing every day. Read The Indianapolis Star, April 6, 2015 about local HROs.
Indiana is a great state. Hoosiers are great people. We are better than this, and we are showing that we are better in the increasing numbers of people, businesses, celebrities and others who said this law is wrong for Indiana, who pushed to fix it, and who are now calling for statewide protections for gay and transgender people.
Religious freedom is fundamentally important; that's why it's already protected in our state and federal Constitutions. But that doesn't give any of us the right to discriminate against others. We must ensure that hardworking gay and transgender people are not denied a job, evicted from their apartment, or refused service by a business just because of who they are.
A state RFRA is unnecessary and could encourage discrimination where equality should instead prevail. Regardless of whether any individual or business in Indiana ever invokes a RFRA claim to protect their religious liberty from being "burdened" by serving a member of the LGBTQ community, the law could embolden individuals who feel their religious liberty is "burdened" by treating a member of the LGBTQ community equally, and that this burden trumps others' rights to be free from discrimination. Gay and transgender people who live in communities that lack human rights ordinances that provide enforceable protections against discrimination on the basis of sexual orientation or gender identity are particularly vulnerable to this kind of discrimination.
While we believe that ending discrimination against gay and transgender people is a "compelling government interest," RFRA leaves it up to the courts to decide.
On March 30, the ACLU of Indiana and Freedom Indiana, along with local and national coalition partners, asked lawmakers to adopt the Fairness for All Hoosiers Act, which contains two common-sense provisions:
On April 2, the legislature passed, and the governor signed, an amendment to Indiana's RFRA so that it cannot be used to override current and future civil rights protections, including local anti-discrimination ordinances in Indiana that include protections based on sexual orientation and gender identity.
Unfortunately, laws providing LGBTQ protections in much of the state do not yet exist. We need to amend and extend Indiana's state civil rights law to prohibit discrimination against gay and transgender Hoosiers statewide in employment, housing and public accommodations.
The ACLU of Indiana, along with our coalition partners, is working diligently to change the status quo for all gay and transgender people in Indiana. We will push for legislation that extends statewide protections to the LGBTQ community in the next legislative session--one of the common-sense provisions we requested, but did not receive, in the Fairness for all Hoosiers Act on March 30.
Many factors determine how quickly additional fixes to RFRA can be accomplished, including continued pressure on state lawmakers and government officials from grassroots supporters, businesses, convention leaders, sports organizations, faith leaders, national and local civil rights organizations and celebrities.
We encourage every community in Indiana to adopt human rights ordinances that provide the strongest protections possible for LGBTQ individuals. The ACLU of Indiana can provide assistance and direction if needed.
The timing of this legislation is all important to understanding its intent: the bill was introduced as a backlash reaction to achieving marriage equality for same-sex couples in Indiana. Eric Miller and AdvanceAmerica have been clear about their intended use of RFRA and sought support for the bill through scare tactics by pitching it as "protection from those who support homosexual marriages...and approval of gender identity...." Click here to see the messages they've been sending to their supporters. Fortunately, the legislative fix to the Indiana RFRA was an important step toward preventing this possible misuse of the law.
Unfortunately, the Indiana RFRA is written more broadly than the federal Religious Freedom Restoration Act of 1993. The definition of a "person" who might assert a RFRA claim includes corporations and other entities and is broader even than the U.S. Supreme Court's interpretation of the federal RFRA in the Hobby Lobby case. Another critical difference is that Indiana's RFRA would allow for-profit businesses, employees and individuals—basically anyone—to assert a legal claim or defense of free exercise of religion in a legal proceeding, regardless of whether the government is a party to the proceeding. This type of claim is virtually without precedent.
More than 20 years of experience has shown that RFRA could be used in a variety of ways, potentially including:
As we've seen, the backlash to this bill has been both local and global. Legions of Hoosiers and people outside Indiana, including businesses, convention leaders, sports organizations, faith leaders, national and local civil rights organizations, celebrities and grassroots supporters in and outside Indiana who have signed petitions against the bill say this law impairs the reputation of our state and harms our ability to attract the best and brightest to Indiana:
The passage of RFRA in Indiana and the resulting backlash has brought about a "startling transformation" and turned into a "driver of LGBTQ equality all across the country," according to James Essex, Director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project in an aclu.org blog post. This tipping point for LGBTQ equality has helped the ACLU defeat similar proposals in Georgia and Nevada, pared back the proposal in Arkansas, and dimmed prospects for passage of RFRAs in North Carolina and Michigan. And, the passage of RFRA has opened the door for introducing LGBTQ non-discrimination protections not only in Indiana, but also in Arizona, Florida, Ohio and Pennsylvania.
Even if the U.S. Supreme Court were to decide in favor of marriage equality this term, it is possible that the Court's decision could still leave such couples open to discrimination under the state RFRA. The question of marriage equality for same-sex couples could be decided on substantive due process grounds, that the right to marriage is a fundamental right, and not on equal protection grounds.
Anyone can stay informed of news on a RFRA fix, and be alerted to ways to take timely and appropriate actions, by signing up for our email alerts, following our social media and viewing updates on our website. Please visit www.aclu-in.org, to access all these methods of staying informed.
Our mission: The ACLU of Indiana is dedicated to defending individual rights and preserving liberties that are grounded in the United States and Indiana Constitutions and civil rights laws.
The American Civil Liberties Union is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country. The ACLU of Indiana, headquartered in Indianapolis, is a statewide affiliate of the ACLU headquartered in New York, which was founded in 1920. Established in 1953 as the Indiana Civil Liberties Union (ICLU), the ACLU of Indiana adopted its current name in 2006. We bring cases against government entities to protect the rights of individuals and groups. The ACLU of Indiana is nonpartisan and does not endorse political candidates. A nonprofit membership organization, we do not receive public funds, tax dollars or government support. Our strength comes from more than 4,000 supporters whose tax-deductible donations fund our free legal services and educational outreach, and whose annual membership dues support advocacy, organizing and lobbying activities to promote civil liberties.