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