Under a bill signed into law yesterday by the state Republican Governor Mike Pence, Indiana has become the latest state to protect business owners who deny service to homosexuals. The Religious Freedom Restoration Act allows a business owner to cite his or her religious beliefs as a defense in court, and bans local governments from making any law "substantially burdening" the free exercise of religion.
The measure prohibiting local action addresses a recent spate of municipal anti-discrimination laws passed by cities across the country.
The law became a lightning rod almost instantly, with businesses, conferences and even the NCAA expressing concern about continuing to do business in the state.
"We are especially concerned about how this legislation could affect our student-athletes and employees," wrote Indianapolis-based NCAA President Mark Emmert in a statement released Thursday. He went on to say that while the Final Four will proceed as planned in Indianapolis this year, the conference will "closely examine the implications of this bill and how it might affect future events as well as our workforce."
The signing followed an intense and controversial debate over the Republican-backed bill. Proponents claim that this law is necessary to prevent business owners from being forced to act against their religious beliefs, while critics argue that Conservatives have used "religious freedom" as a thin veil for discrimination.
Pence disagreed with that characterization in a written statement, further arguing that "[t]he 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."
Indiana is the 20th state to pass some form legislation on this issue, which social Conservatives took up as a cause in the wake of recent courtroom victories for gay marriage advocates. Conservatives argue that these bills are necessary to protect business owners from having to choose between the law and their own faith. They cite cases such as the Masterpiece Cakeshop in Colorado as examples, whose owner refused service to a gay couple and said that he "would close down the bakery" before serving a gay wedding.
Since neither Constitutional nor federal law prohibits discrimination on the basis of sexual orientation there, state and local laws have been left to find their own way.
Legal experts, however, are pointing out that Indiana's religious freedom law could extend well beyond its intent. Under language that protects any claim of religious burden a virtual patchwork of faith-based issues could spring forth from businesses around the state. (Fears of faith-based racism are, however, unfounded. Racial discrimination is banned under federal law which Indiana cannot supersede.)
In the immediate wake of passage Indiana began receiving national criticism. In addition to concerns expressed by the NCAA, Salesforce CEO Marc Benioff announced in a series of tweets that his company will cancel all programs that require its employees or customers to travel to Indiana, urging "slow rolling economic sanctions if the law is not thrown out."
Yelp CEO Jeremy Stoppelman joined in with an open letter, saying that "it is unconscionable to imagine that Yelp would create, maintain, or expand a significant business presence in any state that encouraged discrimination by businesses against our employees, or consumers at large… [and that] Yelp will make every effort to expand its corporate presence only in states that do not have these laws." Conventions such as GenCon, a 50,000 person gaming convention held annually in Indianapolis, have also floated the possibility of relocating away from the state. Even some Protestant church groups have indicated that they might begin hosting their events outside of Indianapolis, due to concerns that members "might experience legally sanctioned bias and rejection once so common on the basis of race." In a statement, Indiana Chamber of Commerce President Kevin Brinegar called the law "entirely unnecessary."
"The reactions to it are not unexpected or unpredicted," he wrote, "passing the law was always going to bring the state unwanted attention."
Despite the widespread passage of laws similar to the Religious Freedom Restoration Act, none has yet been fully tested in court. Under the case study envisaged by the law's supporters, a florist would use the law to protect herself from having to decorate a homosexual wedding, yet it's unclear that the court would actually accept that a commercial contract constitutes an undue burden on the individual's free exercise of religion. There is a real possibility that laws like this will return to the news as part of a tumultuous series of challenges someday bound for the Supreme Court.
What remains certain, however, is the firestorm that seems to be coalescing around Indiana commerce. Although this too might pass, for the time being it appears as though Indiana's stand on discrimination may end up costing the state a lot of money.
—Written for MainStreet by Eric Reed, a freelance journalist who writes frequently on the subjects of career and travel. You can read more of his work at his website A Wandering Lawyer.