With less than a month before the U.S. Supreme Court will hear four cases on recognizing same-sex marriage, Indiana’s infamous Religious Freedom Restoration Act (RFRA) comes at a tense time.
While many other states possess their own versions of the federal RFRA — passed in 1993, which protects from substantial governmental burdens on individuals’ expression of their religion — Indiana’s RFRA, approved by Gov. Mike Pence, is decidedly different. Indiana’s law, according to an article in The Atlantic examining its language in detail, would allow individuals and private for-profit businesses to use evidence of religious “burdening” as a defense in court, even when a government entity is not involved.
The timing of this bill’s passing with the upcoming Supreme Court hearings on same-sex marriage is obviously not coincidental, and it represents a clear loophole that a number of businesses in Indiana could use to discriminate against same-sex couples and the state’s LGBT community in general.
While the changes included in Indiana’s RFRA read as seemingly insignificant legal jargon, one in particular allows for blatant discrimination and a host of civil rights issues.
The law’s first departure from the federal RFRA — the ability for corporations to have First Amendment religious expression rights similar to individuals, according to The Atlantic — is controversial, but not new.
For instance as mentioned in the article, in Burwell v. Hobby Lobby Stores, the Supreme Court ruled last June that the federal RFRA applied to corporations, which allowed Hobby Lobby employers to deny contraceptive coverage to its employees.
The second edit made to the state law, however, allows both individuals and corporations to use religious “burdening” as a legal defense against lawsuits by other people, rather than only those brought on by the government. In the Hobby Lobby case, the U.S. Department of Health and Human Services was involved, which is a government entity.
Indiana’s RFRA, however, opens the door for private businesses to refuse to serve a customer by claiming that doing so violates their right to religious expression, which would be legally justified in Indiana under this RFRA law.
As reported in the Daily Beast, bakers, florists and photographers who choose not to provide their services for a same-sex couple would have ample protection under the law in Indiana, and private pharmacists could refuse to fill a prescription for HIV preventative medicine to a homosexual customer.
While Pence has called for another bill to prevent Indiana’s RFRA from supporting discrimination, according to USA Today, it is too early to determine what impact the law will have on the state and same-sex marriage in Indiana. The only acceptable version of Indiana’s RFRA is one that includes no legal window for any business to discriminate based on sexual orientation. As of now, the bill is simply too broad to ensure that it wouldn’t do so.
Russell Nay is a freshman majoring in mass communications.