War of the Roses: The Aftereffects of RFRA
After Governor Mike Pence approved the amendment to Indiana’s Religious Freedom Restoration Act in April, clarifying that the law would not allow discrimination based on sexual orientation or gender identity, the question still remained: Could, for example, a florist with religious objections still refuse service to a same-sex couple planning a wedding? The answer: In some places, perhaps.
The “fix” amendment only affects LGBT residents living in areas where those anti-discrimination ordinances are already in place, including Indianapolis, Bloomington, and South Bend. In its original form, RFRA would have overridden the local safeguards. Outside of those areas, since the state offers no protection for gender identity and sexual orientation like it does for race, businesses are permitted to decline to provide services based on those factors. So says Daniel Conkle, a professor at the Maurer School of Law at Indiana University who has studied the issue. As the popular example goes, then, a florist, baker, or dressmaker morally opposed to same-sex unions could turn down the business. That’s why an Indiana-wide anti-discrimination law could be on the docket in the next legislative session. Since the clarification was added to the RFRA bill, cities across the state—including Martinsville, Muncie, Whitestown, and Evansville—have updated their ordinances to provide further LGBT protections. Freedom Indiana, a coalition focused on LGBT equality, launched a campaign to help other
cities overhaul their ordinances, too.
Pence has stated that updating Indiana’s anti-discrimination language is not on his agenda.
For his part, Pence has stated that the issue is “not on my agenda,” so the road may be hard for supporters. That’s why Kyle Palazzolo, a staff and HIV Project attorney with Lambda Legal, believes Indiana needs to galvanize the same base that opposed RFRA while the momentum is still strong. Looking to neighboring Illinois may provide guidance. There, Palazzolo notes, Lambda Legal helped lawmakers pen one of the most comprehensive anti-discrimination bills in the country, all while ensuring the law would coexist well with the state’s previously enacted RFRA.
The issue could shape up to be the new front in the ongoing culture wars. Religious groups like the U.S. Conference of Catholic Bishops and the Southern Baptist Convention maintain that the uproar over Indiana’s RFRA won’t stop them from looking for new ways to fight back. For now, supporters of the amendment—which introduced “sexual identity” and “gender identity” language into an Indiana law for the first time—have been citing it as a first step. And with Freedom Indiana already gearing up to push for sexual orientation and gender identity to be added to the state’s civil-rights act next session, we may see which side has a stronger legal foothold sooner than later.