Legal Scholars, the Indy Star, and Indiana Business CEOs Speak Out Against Indiana’s ‘Right to Discriminate’ Law

Many are asking why the Indiana law passed recently, which purports to be just another version of the Religious Freedom Restoration Acts already passed over the past few years in over 20 states, has triggered such a firestorm of controversy and denunciation.

The emerging consensus is that the law, as written, does not respect existing anti-discrimination laws, and is obviously tailored to allow not just persons but businesses to discriminate against classes of people subjectively identified by the religious creed of the objector as being unfit to be served or otherwise engaged with. Of course the supporters deny the root cause this law was passed was to enable religious bigots to resist equal rights and access to services by gays and lesbians. That is the root of the motivation for passing this bill, pure and simple.

And, as it is written, it will allow that, and will trigger an avalanche of law suits trying to resolve the incredibly ambiguous language of the statute. One key passage in the law reads as follows:

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

You can read, if you can stand it, the entire text of the law at this link at the Indy Star.

Here it is: The text of Indiana’s ‘religious freedom’ law

I suspect having watched Gov. Pence’ performance on this, including his Sunday TV appearance he refused six times to provide a direct answer to stephanopoulos’ question “Doesn’t this law allow discrimination against gays and lesbians”. His waffling and hypocrisy have reached the point that he is becoming a laughing stock. He even published an op-ed in the Wall Street Journal, but still refuses to directly address the issues, instead, he still keeps whining that the blow-back is all just misinformation peddled by the mean old liberal media. Of course, Pence’ problem there is that he is trapped in the epistemic closure of the right wing echo chamber.

Julian Sanches introduced the concept of epistemic closure and the conservative wing in American politics and thought in a seminal post in 2010, which is well worth the read: Frum, Cocktail Parties, and the Threat of Doubt.

One of the more striking features of the contemporary conservative movement is the extent to which it has been moving toward epistemic closure. Reality is defined by a multimedia array of interconnected and cross promoting conservative blogs, radio programs, magazines, and of course, Fox News. Whatever conflicts with that reality can be dismissed out of hand because it comes from the liberal media, and is therefore ipso facto not to be trusted. (How do you know they’re liberal? Well, they disagree with the conservative media!) This epistemic closure can be a source of solidarity and energy, but it also renders the conservative media ecosystem fragile

Thirty top legal scholars across the nation, including many in law schools of Indiana University, wrote a letter to Indiana State Representative Ed DeLany on February 27, 2015, outlining in detail everything that was wrong with the so-called Religious Freedom Restoration Act legislation being considered by the Indiana state legislature.

Letter to Indiana State Representative Ed DeLaney February 27, 2015

Finally, some of the supporters of the proposed state RFRAs argue that the bills are “hardly radical” but rather offer modest and well – cabined protections for religious liberty. They insist that the proposed RFRAs are modest proposals since Hobby Lobby and other cases interpreting the federal R FRA evidence a track record of “cautious enforcement” by courts of statutory religious liberty rights, and that the law would merely enable the “open ing of a door ” with state and local officials to discuss how they might consider burdens on the exercise of religion . These advocates further argue that an Indiana RFRA, if passed, is unlikely to be interpreted by courts to grant religious liberty rights to for – profit businesses or owners of public accommodations, and that they have seen little evidence that similar statutes have unleashed a great deal of litigation. Thus, they argue, the proposed Indiana RFRA represents a narrow avenue through which to clarify and signal the state’s commitment to religious liberty.

In our expert opinion, the clear evidence suggests otherwise and unmistakably demonstrates that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly
take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs. As we have learned on the federal level, RFRAs do not “open a door” to conversation, but rather invite new conflict that takes the form of litigation. This collision of public rights and individual religious beliefs will produce a flood of litigation, whereby Indiana courts will be asked to rebalance what has been a workable and respectful harmony of rights and responsibilities in a pluralistic society.

This morning, the largest newspaper in the state, has published a front page editorial denouncing the law that passed, and has brought a firestorm of criticism and derision on the state from not just the rest of the nation, but the world.

Editorial: Gov. Pence, fix ‘religious freedom’ law now

We are at a critical moment in Indiana’s history.

And much is at stake.

Our image. Our reputation as a state that embraces people of diverse backgrounds and makes them feel welcome. And our efforts over many years to retool our economy, to attract talented workers and thriving businesses, and to improve the quality of life for millions of Hoosiers.

All of this is at risk because of a new law, the Religious Freedom Restoration Act, that no matter its original intent already has done enormous harm to our state and potentially our economic future.

The consequences will only get worse if our state leaders delay in fixing the deep mess created.

Half steps will not be enough. Half steps will not undo the damage.

Only bold action — action that sends an unmistakable message to the world that our state will not tolerate discrimination against any of its citizens — will be enough to reverse the damage.

Gov. Mike Pence and the General Assembly need to enact a state law to prohibit discrimination in employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity.

Those protections and RFRA can co-exist. They do elsewhere.

We urge Gov. Pence and lawmakers to stop clinging to arguments about whether RFRA really does what critics fear; to stop clinging to ideology or personal preferences; to focus instead on fixing this.

Governor, Indiana is in a state of crisis. It is worse than you seem to understand.

You must act with courage and wisdom. You must lead us forward now. You must ensure that all Hoosiers have strong protections against discrimination.

The laws can co-exist. And so can we.

The Indy Star reports that nine CEOs of major businesses located in and doing business in Indiana have co-signed a letter to Gov. Pence expressing their strong sense that the legislation must be changed to insure there will be no gender based or other discrimination.

Nine CEOs call on Pence, legislature to modify ‘religious freedom’ law

A who’s who of top Indiana business executives called on Gov. Mike Pence and legislative leaders to reform the newly passed Religious Freedom Restoration Act so it can’t be used to “justify discrimination based upon sexual orientation or gender identity.”

The one-page letter was released Monday afternoon after being hand-delivered to Pence, House Speaker Brian Bosma and Senate President David Long.

The nine CEOs signing the letter head some of the state’s largest employers, including Eli Lilly and Co., Anthem and Indiana University Health. They are part of a coalition of businesses that has lobbied against the controversial RFRA legislation, marking one of the most active and heated political lobbying campaigns that Indiana businesses have ever undertaken on a social issue.

The letter said the nine companies are “deeply concerned about the impact (RFRA) is having on our employees and on the reputation of our state.”

It calls on the governor and legislature to “make it clear that Indiana is the welcoming state we all believe it to be. As leaders in the Indiana business community, we call on you to take immediate action to ensure that the Religious Freedom Restoration Act will not sanction or encourage discrimination against any residents or visitors to our state by anyone.”

Text of RFRA letter from Indiana CEOs:

Regardless of the original intention of the Religious Freedom Restoration Act, we are deeply concerned about the impact it is having on our employees and on the reputation of our state. All of our companies seek to promote fair, diverse and inclusive workplaces. Our employees must not feel unwelcome in the place where they work and live.

As we seek to attract and retain great talent from Indiana and around the world, it is critical that we make it clear that Indiana is the welcoming state we all believe it to be. As leaders in the Indiana business community, we call on you to take immediate action to ensure that the Religious Freedom Restoration Act will not sanction or encourage discrimination against any residents or visitors to our state by anyone.

By immediately enacting new legislation that makes it clear that neither the Religious Freedom Restoration Act nor any other Indiana law can be used to justify discrimination based upon sexual orientation or gender identity, our state’s elected leaders can provide the reassurance to the people of our state, our nation and the world that is needed at this critical moment.


Author: Ron