I rarely discuss religious topics, however there are times when it must be done. The Governor of Indiana, Mike Pence, recently signed a “Religious Freedom Restoration Act” into law in the Hoosier State. Some people say the law will open the door to discrimination, such as allowing a baker or florist from providing service to a gay couple seeking a cake or flowers for their wedding, or allowing a pharmacist to refuse to fill a prescription for birth control. Supporters of the new law, including Pence, disagree. Pence said, “this law is not about discrimination. If it was, I would have vetoed it.”
However, he has not explained how the bill does not allow discrimination, or even how the bill does allow one to exercise their religious freedom. On ABC’s “This Week with George Stephanopoulos” Pence was asked six times whether under the law it would be legal for a merchant to refuse to serve gay customers, he refused to directly answer the question. Pence said, “This is not about discrimination, this is about empowering people to confront government overreach.” He did say that he will look into a bill to clarify the law’s intent, if the Legislature sends him such a bill.
If the intent needs to be clarified, does that mean the current language is vague? Absolutely! In order to have some understanding of the debate, I read the law. The first 7 sections of the new law are definitions and explanations of terms. The key elements are sections 5, 8, 9 and 11. Exercise of religion is defined as “any exercise of religion,whether or not compelled by, or central to, a system of religious belief.” The law then says “a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” Except that “[a] governmental entity may substantially burden a person’s exercise of religion… [if the burden] is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” If a person’s “exercise of religion has been substantially burdened, or is likely to be substantially burdened” they may seek relief from the courts. However, the law concludes by stating “is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.”
So on the one hand, you have a law stating that exercise of religion can mean pretty much anything; and that it can’t be substantially burdened. On the other hand, the law says that exercise of religioncan be substantially burdened if the burden serves a compelling government interest (i.e. for the greater good) and is the least restrictive means of furthering said interest. Additionally, I see nothing in this law that states “a person may not substantially burden another person’s exercise of religion.” Which, to me seems to counter the claims that the bill allows a baker to refuse to bake a cake for a same-sex couple. However, laws are often construed after passage to mean any number of things that were not intended.
One thing that was definitely not intended by adoption of this law, was the backlash from various entities. The Indianapolis Star reports, the CEO of Angie’s List “announced that his company will abandon a deal with the state and city to expand the company’s headquarters in Indianapolis.” And the AP reports, “The Indianapolis-based NCAA has expressed concerns about the law and has suggested it could move future events elsewhere.”
Whether or not the new law in Indiana allows discrimination in the name of religion, it has shown that there are people willing to discriminate against the discriminators.