A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act

I’m a fifth generation native Hoosier (dating back to my great-great grandfather Noah Whaley, who was born in Indiana in 1820 and fought in the Civil War), a lawyer, and a gay activist.  I’m astounded at the stupidity of my home state’s action in passing what it calls “The Religious Freedom Restoration Act,” just signed into law by Governor Mike Pence.  While disguised as having something to do with the free exercise of religion, it has only one true purpose: to legitimize discrimination against gay folks.

What does the statute say?  I’ve read the statutory language, and here’s my report.  First of all, the statute never mentions homosexuality.  It simply allows a “person” (defined broadly to include individuals, organizations, corporations, and businesses of all kinds) to refuse to comply with an Indiana statute, regulation, administrative order, or municipal ordinance that mandates conduct that would substantially burden that “person’s” exercise of religion.  That’s it.  What sort of existing governmental law would cause this problem?  An obvious example is an ordinance, such as one passed by the City of Indianapolis (2005), that protects LGBT citizens from discrimination in employment, housing, or public accommodations.  Hence, under the new statute, religious Hoosiers in Indy could fire or refuse to hire gays, or to rent to them, or to snap professional wedding photos for them or take them on as patients in a doctor’s practice [see http://www.washingtonpost.com/news/morning-mix/wp/2015/02/19/pediatrician-refuses-to-treat-baby-with-lesbian-parents-and-theres-nothing-illegal-about-it/].  Non-religious Hoosiers, however, would continue to be prohibited from doing these things in Indianapolis (“I won’t deal with you because fags disgust me even though I’m not religious” would still violate the city ordinance).  How do we tell if a person is religious or not?  We ask them.  The statute specifically states that there is no requirement of belief in a specific religion or participation therein.  Thus someone who’d never before expressed any belief in God could find Jesus seconds before refusing to rent a hotel room to a gay couple and thus escape from liability for violating Indianapolis’s ordinance.

The Indiana statute is similar to both a federal statute and state statutes in 19 other states.  What makes it different is that these other statutes were written to make sure that religious sensitivities were to be considered when applying any legislation, a benign enough reason for their passage years ago without much controversy.  Indiana’s law expands the earlier versions so that it applies to private disputes and not just to ones in which the government is a party.  None of the other versions have been interpreted (nor intended) as allowing private discrimination against LGBT people, but that was the announced reason behind the Indiana Legislature’s version of the statute, meaning it will be almost exclusively used to allow anti-gay discrimination in the Hoosier state.  Homophobia was pushed hard as a justification for similar legislation only once before, when Arizona passed such an Act in 2014, overridden by a governor’s veto when national economic pressure and public condemnation was brought to bear; see http://www.cnn.com/2014/02/26/politics/arizona-brewer-bill/.  As I write this, however, both Arkansas and North Carolina are on the verge of passing private anti-gay “religious freedom restoration” statutes, with homophobia proudly trumpeted as their central legislative motive.

Is discrimination allowed against other minorities?  Probably not.  The statute only voids state laws and cannot void federal laws giving civil rights to minorities, and these statutes will continue to protect people from discrimination based on sex, race, religious, nationality, etc.  Interestingly atheists are entitled to such protection based on their “religion” (though, as one wag said, calling atheism a religion is akin to calling bald a hair color).  Having concluded that other minorities remain protected I should mention that in the infamous Hobby Lobby decision of last year, the Supreme Court on a 5-4 vote allowed that religiously-oriented corporation to discriminate against women in refusing to fund their birth control insurance.  Would the Court now say that religious bias permit all sorts of discrimination [“I won’t serve you because you’re a Jew and your people were Christ-killers!”]?  Surely not, but then I wouldn’t have thought that Hobby Lobby would have prevailed in the Court either. The five Justices in the majority were all Catholics, something that should give us pause.

Federal Law and Gays.  There is no federal statute protecting gays from discrimination in employment, housing, or public accommodations, and for reasons I’ve explained elsewhere there never will be; see http://douglaswhaley.blogspot.com/2014/08/five-judges-have-stopped-all-further.html.  Thus Indiana’s new statute is not likely to allow discrimination against most minorities, and will apply solely to discrimination against gays, which the legislative history of the statute shows was just what was intended.  The Indiana legislature was upset by cases from other states like one where a business’s refusal to make a wedding cake for a lesbian couple violated Oregon law and resulted in the women recovering $150,000 in emotional distress damages [see http://www.katu.com/news/local/Lesbian-Couple-seeks-damages-in-discrimination-case-against-bakery--295812331.html].  Indiana is having none of that.

Is the Indiana statute unconstitutional?  Maybe, maybe not, which is almost always the answer in civil rights cases where the law is murky and seems to depend not on established principles but more on who’s currently on the Court—I once got myself in trouble with my colleagues at The Ohio State Law School by casually remarking in my Commercial Law class that I couldn’t believe anyone could teach Constitutional Law with a straight face.  The main constitutional argument has to do with the 1996 case of Romers v. Evans in which the Court struck down an amendment to the Colorado Constitution that would have invalidated existing Colorado municipal ordinances protecting gays from discrimination.  The Court in Romer stated that if a state was going to take away existing civil rights it had to have a “rational basis” for doing so, and, again, mere homophobia is not a rational basis.  Using that logic it can be argued that the Indiana Legislature is taking away civil rights protections from LGBT citizens in Indianapolis without a “rational basis.”  But surely the Hobby Lobby decision is a powerful argument that religious beliefs are rational (for those who believe in God), so who knows what the Court will say?  Justice Anthony Kennedy was in the majority in both the Hobby Lobby decision and Romers, and, as in those cases, he’s likely to be the swing vote should the Indiana statute or similar ones reach the Court in a year or so.

How Can the Indiana Statute Be Overcome?  This vile statute is given the innocent name “The Religious Freedom Restoration Act” precisely because that sounds so uncontroversial.  Who isn’t in favor of religious freedom?  I am, and I assume you are too.  Certainly I wouldn’t argue that a religious organization, say the Catholic Church, can’t decide who gets to be employed as priests or nuns even if I disapprove of its selections (as I sometimes did when I was a young Catholic trapped in their schools).  But if someone goes into a business that deals with the public, such as making wedding cakes or treating patients in a doctor’s office, he/she is no longer allowed to discriminate based on personal revulsion against protected groups.  No baker may legally say “I won’t make cakes for your wedding because I hate black people.”

Audra McDonald
There has been much outrage at what Indiana has done, and already some effective protests may be causing the state legislature and the governor second thoughts.  Indianapolis is to be the site of the March Madness Final Four games this year, but the NCAA, which is headquartered in Indianapolis, have indicated this may be the last year for that.  Some national sports commentators and staff are gay or very gay-supportive and are already protesting having anything to do with a state that enacts discriminatory legislation that might cause them problems renting a room or getting a meal or taxi, etc.  [If that sounds farfetched I saw in last Saturday’s newspaper an interview with an Indianapolis restaurant owner who proudly announced he will no longer serve gays.]  A couple of conventions that usually bring their business Indiana have indicated they will now back off, and national personalities such as entertainer Audra McDonald have taken firm stands.  Here’s hers:

As others, both gay and straight, stand up for what’s right, and particularly as they threaten the state with economic sanctions, things might cause this statute to be repealed (though any legislator voting to repeal a statute in favor of religious freedom had better be ready to retire).  At the very least a strong public negative reaction might keep other states from doing similarly evil things.  The gay community has long benefited from terrific support from the straight community, and for that we are very, very grateful; see http://douglaswhaley.blogspot.com/2012/11/straight-people-thanks-from-lgbt.html.  This past Saturday Indiana Governor Mike Pence announced that he was surprised by the outrage expressed about the new statute by everyone from local gay organizations to the President of the United States, and he’s asked the legislature to pass a “clarifying” amendment, though what it might say that would lessen its original intent is a mystery.  Pence explained that the Indiana statute was never meant to discriminate against anyone (!), a remark that shows he’s either brain dead or so bad a politician that he can’t even concoct a credible lie.

Governor Pence Pontificating

When I began my career as a gay activist in the early 1980s hatred of homosexuals was everywhere and supporters of LGBT rights were few and far between.  The battles were ugly and dangerous; see http://douglaswhaley.blogspot.com/2010/03/aging-gay-rights-activist.html. One thing I learned early on was to shift the debate from whether gays were perverts to whether those who opposed our rights were bigots.  I was on many TV and radio call-in shows where the caller would start out saying things like “Homosexuals are sick!” and I’d respond by asking the caller how he/she justified being a bigot.  Of course, no one wants to be called a “bigot,” so there would be sputtering and protestations and the caller and I would get into a Socratic dialogue (the preferred way of teaching in legal classrooms) about the meaning of the word “bigot” and whether the caller was really one or not.  That was a much more satisfying discussion.  Immediately other callers would light up the phones with outraged protests of “I’m no bigot!” and we’d then explore that contention.  After one such long discussion with a caller she became quite confused and told me “I don’t believe God would create people as homosexuals and then make homosexuality a sin!”  I replied that I didn’t believe that either, and thanked her for calling as we switched to someone else.  For the first five or so years of the gay pride march in Columbus I was the final speaker of the day at the after-march rally, and at the end of my remarks I would point to the group of protesters across the way with their anti-gay signs, and tell my audience, “Pretend I’m one of those haters.  I’m going to yell ugly words at you and you’re going to yell back, ‘Bigot!’ Are you ready?”  They’d happily agree.  Then I’d sling at them words like “Faggot!” “Dyke!” “Pervert!” and “Lesbo!”, each time hearing a resounding “Bigot!” coming back, the sound bouncing off the buildings around the Statehouse.  After the last echo died I’d point at the crowd and say, “Good for you! [For videos of this see http://douglaswhaley.blogspot.com/2012/06/history-of-gay-rights-in-columbus.html].  I’m proud that in Ohio the response to homophobia was frequently the word “bigot,” a word that stings and makes people pause to reflect on their true motivation.

Let’s stop using the pretentious title that this Indiana statute gives itself.  “The Religious Freedom Restoration Act”—really?  Let’s ask what “religious freedom” does it pretend to be restoring?  By 2015 growing acceptance of homosexuality has led to statutes and ordinances protecting gays that have real teeth in them, and this does trample on the Bible-given right to treat homosexuality as an abomination.  That millennia-old hatred is the supposed “religious freedom” being “restored.”  But, as a lawyer and a consumer, I believe in truth in labeling.  From now on let’s refer to it as what it really is: the “Religious Bigot Protection Act.”  That puts the focus exactly where it belongs.

Related Posts:
“Catholicism and Me (Part One),” March 13, 2010: http://douglaswhaley.blogspot.com/2010/03/catholicism-and-me-part-one.html;
“Catholicism and Me (Part Two),” April 18, 2010: http://douglaswhaley.blogspot.com/2010/04/catholicism-and-me-part-two.html;
“Gay Marriage, the Sixth Circuit, Jeffrey Sutton, and the Supreme Court,” November 13, 2014: http://douglaswhaley.blogspot.com/2014/11/gay-marriage-6th-circuit-jeffrey-sutton.html;

Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015; http://douglaswhaley.blogspot.com/2015/06/married-at-last-gay-lawyer-looks-at.html

"A Guide to the Best of My Blog," April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.


  1. Doug, glad to see you offer your view on this.


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