What Indiana's Shifting 'Religious Freedom' Law Really Means for LGBT Diners

Last week, Indiana enacted a law that ostensibly gave business owners the right to discriminate against LGBT people. The law is couched in terms of religious protection; it restricts the ability of the state and its municipalities to burden the "exercise of religion." However, opponents feared it enabled restaurants to refuse service on the basis of sexual orientation (and indeed, some restaurant owners quickly and publicly announced plans to deny service to LGBT customers). Indiana's governor, Mike Pence, assured that encouraging discriminatory practices was not the law's intent. However, those assurances failed to assuage the business community, and when the economic screws tightened, Pence finally buckled and called for the law's reform.

Yesterday, Pence and the Indiana Legislature amended the law. The amendment expressly provides that the law cannot be used justify discrimination on the basis of sexual orientation. However, the amended law still fails to provide affirmative, statewide protections against sexual orientation and gender identity discrimination. In fact, many Indiana restaurants — like the news-making Memories Pizza — are still able to legally discriminate against LGBT people.

At the outset, it is important to consider whether Indiana's new law, as it was originally enacted, actually gave businesses a license to discriminate on the basis of sexual orientation. Twenty states have enacted similar laws, colloquially referred to as Religious Freedom Restoration Acts (RFRAs). These state laws take their name from a federal law enacted under President Bill Clinton in 1993. That law was a bipartisan reaction to a controversial 1990 Supreme Court ruling against Native American drug rehabilitation counselors who claimed they had a constitutional right to ingest peyote as part of religious ceremonies. Since its enactment, the federal RFRA has been properly used to protect religious minorities. For example, it was used to require the government to return confiscated feathers to a Native American tribal leader, to permit a Sikh IRS employee to carry a religious emblem, to require a Texas kindergarten to admit a Native American child whose hair length violated the school's policy, and perhaps most famously, to permit a Muslim prisoner to grow a one-inch beard that posed no security threat. Pence claimed that Indiana's original RFRA simply "mirror[ed] the federal law that President Clinton signed," and was merely intended to protect "religious liberty."

However, several factors lead to the widespread belief that Indiana's original RFRA was actually intended to allow businesses to discriminate against LGBT people, which, of course, would be antithetical to the minority protections provided by the federal RFRA. First, the language of Indiana's RFRA varies from that of the federal RFRA in significant ways. Unlike the federal law, Indiana's RFRA permits a "person" — which includes business entities like restaurants — to assert religion as a defense in a lawsuit, "regardless of whether the state or any other governmental entity is a party to the proceeding." This means that if a gay couple sued an Indiana restaurant for discriminating against them, the restaurant could have used the original law as a defense.

Secondly, some of the original law's strongest supporters — who, predictably, are also among the state's most powerful, socially conservative lobbying organizations — openly touted that the law enabled Christian business owners to refuse to provide services to LGBT people. "RFRAs nowadays are directed at validating and legitimizing anti-gay discrimination," Dale Carpenter, a constitutional law professor at the University of Minnesota Law School, told the Washington Post. "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."

Video: How Most States Still Discriminate Against LGBT People

And equally telling, Pence signed the new law less than a year after a federal court struck down Indiana's same-sex marriage ban. Unfortunately, America has a long history of civil rights progress being met with religious justifications for preserving the days of yore. During the African-American Civil Rights Movement of the 1960s, religious liberty was used to resist integration, with one restaurant franchise owner claiming that "his religious beliefs compel[ed] him to oppose any integration of the races." Similarly, in 1983, South Carolina's Bob Jones University used religion to resist interracial marriage, arguing that "the Bible forbids interracial dating and marriage." Even as recently as 1990, religion was used to resist gender equality, with some employers justifying disproportionately low pay for women on the grounds that "the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family."

However, notwithstanding of the intent of Indiana's original RFRA, it almost certainly did not grant restaurants a license to discriminate on the basis of sexual orientation. About a dozen Indiana cities have enacted LGBT-inclusive nondiscrimination ordinances: Indianapolis prohibits unequal access to and use of public accommodations — which includes restaurants — on the basis of sexual orientation or gender identity. The original RFRA did not invalidate these ordinances. Jonathan Adler, a constitutional law professor at Case Western University School of Law, explained to the Washington Post:

This law, like other RFRAs, merely requires that state laws [and city ordinances] meet a demanding, but hardly insurmountable, test before infringing upon the religious practice or conscience of religious believers. If the law imposes a substantial burden on religious belief, the law must yield unless the law serves a compelling state interest and is the least burdensome way to advance that interest. . . . Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest.

Furthermore, the United States Constitution would not permit Indiana to enact a law that permits discrimination against LGBT people. The Supreme Court has repeatedly recognized that laws based on "a bare congressional desire to harm a politically unpopular group" violate the Constitution's Equal Protection Clause. Likewise, the Court has consistently used the Equal Protection Clause to strike down laws that stigmatize and demean discrete groups of people. Additionally, the Constitution's Establishment Clause prohibits the government from giving preference to one religion. Indiana therefore cannot create a religious exception to nondiscrimination ordinances if doing so would require customers to bear the costs of discriminatory religious beliefs that they do not themselves support. In short, while the Constitution protects the Peoples' right to exercise religion, it does not provide a right to harm or discriminate against others.

Nor does Indiana's RFRA tie the hands of employers and franchisors who wish to cut ties with discriminatory employees and franchisees. The law does not "create a claim or private cause of action against any private employer." Therefore, the law would not provide recourse against private employers who fire discriminating employees or franchisors who terminate franchise agreements with discriminating franchisees.

Yesterday's amendment fixes the perceived problems with Indiana's original RFRA by providing that it does not "authorize a provider to refuse to offer or provide services... on the basis of... sexual orientation [or] gender identity," and that it does not "establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services... on the basis of... sexual orientation [or] gender identity." This language clarifies that Indiana's RFRA cannot be used to invalidate the LGBT-inclusive nondiscrimination ordinances that exist in several Indiana cities.

However, it does not affirmatively prohibit all Indiana restaurants from discriminating against LGBT people. Indiana is one of many states that has not passed statewide LGBT discrimination protections. Furthermore, federal civil rights laws do not prohibit discrimination in access to public accommodations — which, again, includes restaurants — on the basis of sexual orientation, and constitutional protections against discrimination do not reach private parties. Therefore, many of Indiana's restaurants — those in cities that lack LGBT-inclusive nondiscrimination ordinances — have always been able to legally discriminate against LGBT people. Indiana's amended RFRA does not change this — since it is legal for those restaurants to discriminate against LGBT people, there can be no "civil action or criminal prosecution" for them to defend against.

Pence is still considering a 2016 presidential bid, and to that end, he successfully bamboozled conservative lobbyists (and perhaps himself) into believing that Indiana's original RFRA granted a license to discriminate on the basis of sexual orientation. Pence got more than he bargained for when the entire nation caught wind of his right-to-discriminate message, and rebuked it with unprecedented fervor. Facing immense pressure from every possible direction, Pence was forced to concede that although Indiana does not affirmatively prohibit LGBT discrimination, it cannot sanction it either.

This serves as an important reminder of the ability of restaurants and other businesses to effect important social change and hold representatives accountable to the people who elect them. Although it is still legal for restaurants in many areas of Indiana to discriminate against LGBT people, it has become abundantly clear that much of the public will not tolerate it.