In the week since I first wrote about it, Indiana’s Religious Freedom Restoration Act has become something of a political firestorm to say the very least. Gay rights organizations and other groups that have been involved in the fight for marriage equality have argued from the beginning that the law was intended, at least in part, to provide the coverage of “religious freedom” for business owners who wanted to dicriminate against gays and lesbians, with the most prominent examples cited being vendors refusing to provide services for same-sex weddings. Once this perception of the bill took hold, the reaction across the country was swift and severe. In addition to setting off a debate about the relationship between religious liberty and pluralism, the bill also led to a huge amount of criticism from the business community and threats of boycotts against the entire State of Indiana unless something was done about the bill. Apple’s Tim Cook, the nation’s most prominent gay business leader, penned an Op-Ed denouncing the bill and calling on Indiana legislators to change the bill to address the concerns of the public. Businesses and other groups announced plans to cancel conventions in Indiana, and even businesses located in the state such as Angie’s List announced that they would hold off on expansion plans in the wake of the new law. With Indianapolis set to host the Final Four this weekend, the NCAA issued a statement stating that the law went against the organizations values, and the defenders of the law such as Indiana’s Governor Mike Pence seemed to be flummoxed by the swiftness of the negative reaction to the law in such as short period of time.
Today, in what can only be seen as a retreat and an effort to address the complaints that have been leveled against the law, Pence called on the legislature to immediately amend the law to make it clear that it would not apply in cases involving discrimination:
Facing a national uproar over a religious freedom law, Gov. Mike Pence of Indiana said Tuesday that he wanted the measure changed by week’s end, even as he stepped up a vigorous defense of the law, rejecting claims that it would allow business to deny services to gays and lesbians.
“I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses the right to discriminate against anyone,” Mr. Pence, a Republican, said at a news conference in Indianapolis.
He acknowledged that the law, called the Religious Freedom Restoration Act, had become a threat to the state’s reputation and economy, with companies and organizations signaling that they would avoid Indiana in response to it. Mr. Pence said he had been on the phone with business leaders from around the country, adding, “We want to make it clear that Indiana’s open for business.”
But the governor, clearly exasperated and sighing audibly in response to questions, seemed concerned mostly with defending the law and the intent behind it, saying, “We’ve got a perception problem,” not one of substance. He referred to “gross mischaracterizations,” “reckless reporting by some in the media,” “completely false and baseless” accounts of the law, and “the smear that’s been leveled against this law and against the people of Indiana.”
“If this law had been about discrimination, I would have vetoed it,” he said. “I don’t believe for a minute that it was the intention of the General Assembly to create a license to discriminate, or a right to deny services to gays, lesbians or anyone else in this state, and that was not my intent, but I appreciate that that’s become the perception.”
Like the Republican legislative leaders who said on Monday that they intended to clarify the law, the governor said he could not say what form that clarification might take. “The language is still being worked out,” he said.
The law has set off a firestorm, with both critics and some supporters saying it would allow businesses to deny service to lesbian and gay customers if doing so would offend their religious beliefs. Businesses, organizations, politicians and many celebrities have spoken out against the law, some of them canceling events in the state.
Fellow Republicans have said the governor added fuel to the fire on Sunday, when he did not directly answer some questions about the law in an interview on the ABC program “This Week,” in particular a question about whether a florist could deny service to a gay couple on religious grounds.
“I could have handled that better,” he said Tuesday. “But going into that interview this weekend, I was just determined to set the record straight.”
Asked again about the hypothetical florist, Mr. Pence said, “This law does not give anyone a license to deny services to gay and lesbian couples.”
“I believe in my heart of hearts that no one should be harassed or mistreated because of who they are or who they love,” he added. But at the news conference, and earlier Tuesday in an interview on Fox News, he did not say whether he thought such discrimination would be, or should be, legal under any state law.
During his press conference, Pence continued to try to take the position that the law was defensible and that it was not intended to sanction discrimination. However, the fact that he is endorsing efforts that are already underway among the Republican leaders in the state legislature to “fix” the law in some way seems to be an admission on his part that, at the very least, the state has lost the public relations battle over the law and that not addressing the concerns that have been expressed by business owners and sports organizations like the NCAA would only serve to hurt Indiana economically going forward. On some level, of course, Pence is right that the law itself is about more than just objections to same-sex marriage and the question of whether or not vendors who object to such unions should be able to cite their religious faith as justification for not providing services for such ceremonies. RFRA laws such as the one that became law in Indiana have been around for two decades now, and they are just as likely to be used over mundane issues such as zoning and land use issues impacting property owned by a church or other religious institution as they are to be used in a hot button situation such as this. At the same time, though, it is rather obvious that the Indiana RFRA, as well as similar laws now pending in the legislatures of Arkansas, North Carolina, and Virginia, was being advanced at this time largely in reaction to the same-sex marriage debate. In January, for example, The New York Times noted that legislation such as this had become a priority for socially conservative Republicans across the nation in the months since the floodgates were opened in the marriage equality wars by the Supreme Court’s refusal to dear the appeals of appellate court decisions striking down state laws banning same-sex marriage across the country. This motivation for the legislation seems to be even more apparent given that, when asked last week to name examples of cases that made the law necessary, Governor Pence could not come up with a single example. Additionally, as Zack Ford notes, the backers of the Indiana law made it pretty clear that it was the issue of allowing “religious” business owners to refrain from providing services to same-sex weddings that motivated them bringing the law forward to begin with. Given all of this, and given the fact that national attention is focused on this issue as we await the outcome of the cases now pending before the Supreme Court, the outcry should not have really come as much of a surprise to Pence or anyone else in Indiana.
It’s still rather unclear just what form the “fix” to Indiana’s RFRA will take. One Republican state legislator who was interview on MSNBC this morning suggested that it could end up being as simple as a single sentence added to the law that states that the law cannot be used as a defense to a claim of discrimination by a business that holds itself out to the general public. One problem with this suggestion is that, other than a municipal ordinance in the city of Indianapolis, there does not seem to be any law in Indiana at either the state or local level that makes it illegal for business owners to discriminate on the basis of sexual orientation. Given that, it’s unclear whether a gay or lesbian couple who was turned down by a business owner would have a cause of action under the law to begin with. Others have suggested that the way to fix the law is to pass a law making it clear that sexual orientation is a protected class under the civil rights laws in Indiana, but that seems like it would be a bit of a long shot. Obviously, the devil will be in the details but with the firestorm unlikely to calm down any time soon unless something is done, and given the fact that the Final Four is coming up this weekend and the state would obviously rather that this law not be the focus of media attention between now and Monday, it seems fairly clear that something will be done and that the backers of the bill are conceding some measure of defeat in the public relations war over a law that doesn’t really seem to be necessary to begin with.
Update: This post was updated to reflect the fact that there is a law panning discrimination in public accommodations based on sexual orientation on the books in the City of Indianapolis. This appears to be the only such law in the state, though.
