How Indiana’s ‘Religious Freedom’ Law Could Fail

National Journal
By Sam Baker
March 29, 2015

The debate over same-sex marriage isn’t actually over yet, but opponents are already turning their attention to state non-discrimination laws.

New state laws opening the door to discrimination against same-sex couples are here to stay—but that doesn’t mean they’ll work.

Even if (and likely when) the Supreme Court rules this summer that same-sex marriage must be legal nationwide, same-sex couples are already facing a new patchwork of state laws that could make it easier for businesses, employers, and landlords to turn them away.

Indiana last week became the latest state to pass a law that would make it easier for businesses to refuse to serve same-sex couples, based on their religious beliefs. Although Gov. Mike Pence denied that the law would open the door to discrimination.

But legal experts say opposition to same-sex marriage is the reason these laws are suddenly cropping up in state legislatures—and it’s why Indiana’s law has spurred such an enormous backlash, with big businesses and organizations, including the NCAA, calling for a boycott of the state.

Unlike many culture-war state initiatives whose fate will be decided in the Supreme Court—state laws banning same-sex marriage or restricting abortion access being the highest profile—the latest measures aren’t likely to draw serious legal challenges, several experts said. Even though state legislators have said they’re responding to the growing acceptance of same-sex marriage, the statutes themselves don’t explicitly mention any particular group of people or protect any particular form of discrimination.

Rather, they’re modeled after the federal Religious Freedom Restoration Act, or RFRA, which says government policies can’t infringe on people’s religious beliefs unless they meet a heightened legal standard. That principle isn’t especially controversial; RFRA is constitutional, so state versions of it surely would be, too.

Laws like Indiana’s offer a stronger legal defense in discrimination cases. If a business refuses to serve a same-sex couple, and the couple sues for discrimination, the business can invoke RFRA, arguing that the relevant nondiscrimination laws conflict with their religious convictions.

But being able to make a RFRA claim doesn’t mean that claim will actually win in court. Some legal experts say businesses will still have a hard time justifying discrimination, even with laws like Indiana’s on their side.

“There’s reason to believe that this is going to be an uphill battle for religious vendors who don’t want to serve same-sex couples,” said Christopher Lund, a law professor at Wayne State University and an expert on state religious-freedom laws.

So far, the most famous flare-up in this debate happened in New Mexico, when the owner of a photography studio refused to shoot a lesbian couple’s wedding, saying it would have violated her religious beliefs. New Mexico has a state RFRA law, yet the studio, Elane Photography, lost in every stage of its legal battle.

Lund said that case is a sign that businesses will have a hard time actually winning nondiscrimination cases. But Indiana crafted its law to address the issue that thwarted Elane Photography; the number and scope of state religious-freedom laws are expanding at the same time, upping the odds of a division between states.

“The more cases there are, the more chances a judge or some judges will rule in favor of the religious claim,” he said.

Partly because this spate of laws is a reaction to same-sex marriage, wedding vendors get a lot of attention in these debates: Should a religious photographer have to shoot a same-sex wedding, for example? Should a baker be able to refuse to make a cake for a gay couple?

But critics say the potential reach is much greater. As more states adopt similar proposals, they argue, religious liberty could be used to defend discrimination in housing or by employers who object to providing same-sex spousal benefits.

The problem, critics say, is that conservative states are structuring their own versions of RFRA—often intentionally—with same-sex couples in mind.

“What these are going to be used for, and why they’re being pursued at this time, is to seek to avoid anti-discrimination obligations,” said Douglas NeJaime, a law professor at the University of California, Irvine.

Indiana is the 20th state to pass its own version of RFRA, and critics say the laws keep getting further afield. Indiana, for example, specifically applies its law to disputes between two private parties; some earlier versions only apply when the government is directly involved.

“Most of the bills would allow for that now. I think that’s the new trend,” said Eunice Rho, advocacy and policy counsel at the American Civil Liberties Union.

The emphasis on same-sex discrimination is frustrating for some legal experts, who note that RFRA and its state counterparts have proved invaluable in protecting any number of religious practices that never even came close to discrimination.

“A lot of state RFRA cases have nothing to do with discrimination or sexual morality or the culture wars,” Lund said.

In Texas, for example, the state RFRA law protected a Native American family when their son’s school refused to admit him unless he cut his hair, which he kept long for religious reasons. “There are all kinds of cases like that,” Lund said.”There have been a lot of cases really important to the people involved.”

Texas was the first state to pass its own version of RFRA, soon after the Supreme Court ruled that the federal law did not apply to the states. Its version included a carve-out, specifying that it couldn’t be used to avoid compliance with civil rights laws.

Such an approach would protect a lot of religious practices without raising the possibility of discrimination, Lund said. But the more recent state RFRA laws don’t include carve-outs for civil rights laws, because that would defeat their actual purpose.

“Republicans want to win cases like Elane Photography,” Lund said.

“Everyone knows that’s what’s motivating them,” NeJaime said.

NeJaime sees echoes of the civil rights movement, when restaurants resisted serving black customers and some states fought interracial marriage.

The Supreme Court’s rulings on civil rights established that a specific person’s ability to patronize a specific business was part of a broader culture of dignity and respect. He expects the courts to apply similar reasoning to discrimination against same-sex couples.

“The purpose of anti-discrimination law is not just about being able to get a table at a restaurant; it’s about dignity and equal treatment,” he said. “This is sort of the same kind of thing.”

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