Amid religious freedom concerns, relief over Indiana bill's failure

Indianapolis, Ind., Feb 8, 2016 / 15:23 pm

An Indiana anti-discrimination bill failed in the state senate because it would have proved disastrous for religious freedom, one legal expert has said.

Indiana's Senate Bill 344 died "because it was a threat to freedom of religion and conscience," said Roger Severino, director of the DeVos Center for Religion and Society at the Heritage Foundation.

"Because when you elevate sexual orientation and gender identity to the same status as race, mainstream religious beliefs about sexual identity are then labeled as bigoted," he said.

The broad anti-discrimination bill, introduced in the state senate in January, prohibited discrimination on the basis of sexual orientation or active duty military service in areas like housing, employment and education. Republicans in the state senate killed the bill last week, citing strong disapproval from citizens on both sides of the debate.

According to Severino, the bill would have elevated sexual orientation to a protected class under the state's civil rights law, like race. He said that anti-discrimination bills with a focus on sexual orientation and gender identity end up discriminating against the faith of business owners.

"Those would be the victims of these laws, and religious liberty and freedom of conscience would be the losers."

Businesses could face discrimination lawsuits for many infractions, explained Heritage's Ryan T. Anderson and Dr. Robert George of Princeton University in an article for The Public Discourse. If business owners said they could not serve a same-sex wedding because of their religious beliefs, they could face a lawsuit.

The bill did carve out a religious liberty exemption for churches, religious non-profits, and businesses with fewer than five employees, but it was too narrow to satisfy religious freedom advocates in the state.

Even with a religious freedom exemption, the bill would have subjected business owners to anti-discrimination lawsuits if they refused service to host a same-sex wedding out of conscience, according to Severino.

Such legal cases have happened elsewhere. In Washington state, a court ordered florist Baronnelle Stutzman to pay a massive fine when she declined to provide flowers for a same-sex wedding because she could not in good conscience do so.

"One of the most surprising things about the Indiana proposal is that if it had passed, it would have repealed the state Religious Freedom Restoration Act," Severino said. "And it just shows you how dangerous it is to go down this road where the idea of specifically limiting peoples' religious freedoms was up for debate."

Indiana's Religious Freedom Restoration Act came under fire last year when it was proposed in the state legislature.

It largely mirrored the federal Religious Freedom Restoration Act. That 1993 law prohibits the state from putting a "substantial burden" on a person's religious freedom, unless the state can prove that its actions serve a "compelling governmental interest" and are the least restrictive means of furthering that interest.

Severino backed the federal law.

"RFRA is vital because it fills in gaps that otherwise might not be protected in law, and allows people of many different religious views, including minority views, to get protection from government coercion," he said.

The 2015 Indiana bill was a response to cases across the country where business owners – like bakers and florists -- were being fined for declining to serve same-sex weddings out of conscientious objection.

Backlash against the bill was severe. Conventions, conferences, and events scheduled to be held in the state were canceled. The NCAA threatened to move the men's basketball championship, scheduled in Indianapolis.

There were "wild hypotheticals" being tossed around, Severino said. A pizzeria that told a reporter it would decline to serve a same-sex wedding was forced to close temporarily due to intense and outraged protests. There were rumors that the pizzeria refused all service to customers identifying as gay and lesbian.

Those rumors were proved untrue, but they "presumed the worst in people" and were "detached from reality," Severino said. "By and large, Americans are a very tolerant people, and live and let live."

Last year, facing political and business pressure, the legislature watered down the religious freedom bill. It amended the bill so that it wouldn't apply to laws protecting sexual orientation and gender-identity – laws like S.B. 344.