Indiana’s law opens door to discrimination

Indiana’s religious freedom law, which essentially would allow individuals, religious institutions, businesses and associations to discriminate against gays and lesbians, has aroused justifiable anger within the state and from around the nation. The backlash should serve as a warning to a number of other states now considering similar legislation.

In fact, Indiana itself might already have absorbed that lesson. State lawmakers announced Tuesday that they would work to amend the law by the end of the week to “clarify” that it would not sanction discrimination in the public marketplace.

That decision no doubt resulted in large part from the quick and fierce opposition to the law. Since the bill was signed into law Thursday by Gov. Mike Pence, Washington Gov. Jay Inslee and Seattle Mayor Ed Murray have banned government-funded travel to Indiana, as has San Francisco Mayor Edwin Lee.

Consumer review service Angie’s List announced that it will suspend a planned expansion in Indianapolis because of the new law. The National Collegiate Athletic Association, which has its headquarters in Indianapolis, said on Thursday that it was “especially concerned about how this legislation could affect our student-athletes and employees.” The NCAA will be holding its men’s basketball Final Four in Indianapolis this weekend.

The law also has ignited criticism within the state. The Indianapolis Star used its entire front page Tuesday to run an editorial urging lawmakers to repeal the law, and a number of businesses in the state also have stated their opposition to the law.

Supporters claim the law simply mirrors the federal Religious Freedom Restoration Act passed in 1993. Nineteen other states, including South Carolina, have their own versions of the RFRA.

But all those laws, as well as the federal law, apply only to disputes between a person or entity and a government. And many of the states that have RFRA laws also have laws that prohibit discrimination based on sexual orientation.

The intent of the federal RFRA essentially was to protect religious minorities from unintentional discrimination by laws passed by the federal government. One real-life example was a decision to allow Muslim inmates in federal prisons to wear beards as part of their religious customs, even though prison policy did not allow beards.

A big difference between the federal law and the Indiana RFRA is that the state law is more broadly written to explicitly cover disputes between private citizens, not just those involving governments. Thus it is more likely to be interpreted to sanction discrimination on religious grounds against individuals by private sector businesses, including hotels, restaurants, apartment rental agencies and others.

That summons memories of Jim Crow days when business owners would use biblical references to justify their refusal to serve blacks. That form of discrimination, of course, was found to be unconstitutional.

Indiana’s law, in effect, would open the door to similar discrimination based on sexual orientation. It would be a grievous step backwards.

Indiana’s law ostensibly would support the right of restaurants to refuse to serve gay customers or hotel chains to refuse a room to gay couples. It could be used to justify refusing to hire gays or sell them a house.

The effect of this law would be considerably more far reaching than simply allowing Aunt Bessie’s Bakery to refuse to bake a cake for a same-sex wedding.

The legal precedent against discriminating against African-Americans on that basis is well established. Why should gays be forced to fight that same battle all over again?

On Tuesday, Arkansas passed a law very similar to Indiana’s. Now Arkansas Gov. Asa Hutchinson will have to decide whether to sign it.

We hope the backlash against Indiana will convince him not only that appeasing anti-gay constituents is not worth the headaches but also that laws that institutionalize discrimination are wrong.

This story was originally published March 31, 2015 at 7:33 PM with the headline "Indiana’s law opens door to discrimination."