No, Indiana did not just pass a law discriminating against gay people. Here's why.

Indianapolis, Ind., Mar 27, 2015 / 16:32 pm

Despite media hype, a new Indiana law is not based on anti-gay discrimination, but on a 20-year legal precedent of protecting the rights of religious individuals and charitable organizations, say religious liberty advocates.

"It's both unfortunate and incredibly dishonest to say the things that they are saying about these bills," said Kellie Fiedorek, litigation counsel with the legal group Alliance Defending Freedom.

"The evidence of the past 20 years provides the strongest truth that what they're saying is fundamentally false. Until yesterday, 19 states and the federal government have these exact same laws on the books, and none of these terrible things that are being said might happen have happened," Fiedorek told CNA March 27.

Indiana Gov. Mike Pence signed the Indiana Religious Freedom Restoration Act into law March 26, saying it ensures that religious liberty is "fully protected under Indiana law."

"The Constitution of the United States and the Indiana Constitution both provide strong recognition of the freedom of religion, but today, many people of faith feel their religious liberty is under attack by government action," Pence said.

The legislation declares that state and local governments may not "substantially burden" a person's right to the exercise of religion, unless it is demonstrated that doing so is "essential to further a compelling governmental interest" and uses "the least restrictive" means to further that interest.

The Indiana bill reflects the 1993 federal Religious Freedom Restoration Act, passed by a nearly unanimous Congress and signed into law by President Bill Clinton.

While that law was originally intended to apply to both federal and state government actions, the Supreme Court ruled in 1997 that is applied only federally. Subsequently, 19 states passed their own versions of the law, explicitly applying it at the state level as well. President Barack Obama, who was at that time a state senator, voted in favor of the Illinois Religious Freedom Act in 1998.

The Indiana bill, however, triggered an intense reaction as it was signed into law, with news reports depicting it as "anti-gay" and critics claiming it would enable discrimination.

Wealthy business interests threatened consequences for the state. The CEO of Yelp said the company would not expand in Indiana. Marc Benioff, CEO of the software company Salesforce, canceled company events in Indiana. Apple CEO Tim Cook criticized the legislation, while the president of the NCAA, which will host the Final Four college basketball tournament in Indianapolis, warned that the legislation might affect future events.

Several celebrities also criticized the bill and a hacker briefly took down the State of Indiana's website in apparent retaliation for the signing of the bill into law, the Indiana NBC affiliate WTHR reported.

But backers of the bill say critics are just plain wrong about its application. Nearly identical laws are already in place at the federal level and in more than one-third of states nationwide, they say, and the last two decades have shown that these laws have been used not to discriminate against gay individuals, but to protect religious rights.

Fiedorek pointed to numerous examples of Religious Freedom Restoration Acts in place. In one case, a Texas Native American boy appealed to a similar law when his school dress code barred him from wearing his hair longer than the other students.

In Pennsylvania, the City of Philadelphia allowed commercial food trucks to sell food in a park, but prevented charitable organizations from feeding the homeless for free. The charitable groups used the state Religious Freedom Restoration Act "to defend their ability to feed the homeless and prevent the government from making distinctions on who may exercise their constitutional freedoms and who cannot."

Fiedorek said such legislation might have saved the life of one Jehovah's Witness woman with religious objections to blood transfusions.

In 2012, suffering from liver failure, the woman sought a bloodless liver transplant operation. Her doctors found someone to perform the procedure in the neighboring state of Nebraska that was cheaper than a normal liver transplant.

However, Medicaid and the state of Kansas refused to pay for it because it ruled that the procedure required by her religious beliefs "did not constitute medical necessity."

Fiedorek said the woman "would likely be alive today" had Kansas passed a religious freedom restoration act like Indiana's.

She added that the Indiana law has no bearing on disputes between private parties unless government actions are involved.

Glenn Tebbe, executive director of the Indiana Catholic Conference, said he was "a little surprised" by the controversy. "It seems to have no relationship to what the law actually said."

"The law does not authorize or promote or in any way encourage discrimination towards anyone. The law is there to determine when rights conflict with one another and the best way to resolve that conflict."

If the bill had encouraged unjust discrimination, Tebbe told CNA March 27, "the Catholic Conference and the Church would not be supportive of it."

He called on the law's critics to "take more time to look at what the law actually says, to listen to what constitutional and legal scholars have said about it and also take a look at where this law is already in place and in practice."

Fiedorek noted that the religious freedom restoration acts date back 25 years.

"For most of our country's history, religious freedom had always been protected by a very heightened standard of review by courts," she said.

It was in the 1990s that a Supreme Court decision removed the heightened review for religious freedom that courts otherwise grant to freedom of speech and freedom of association. It was in response to this decision that Congress acted in 1993 with the first Religious Freedom Restoration Act to restore a legal test applying a decades-old standard of heightened scrutiny to government burdens on religious freedom.

"At the end of the day, every citizen should be free to live and work according to their convictions, without fear that the government will come in and force them to do something contrary to their sincerely held beliefs," Fiedorek said.