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The Journal Gazette

  • Associated Press Opponents of Indiana’s Religious Freedom Restoration Act march outside Lucas Oil Stadium, site of the NCAA Final Four, in Indianapolis on Saturday.

Wednesday, March 16, 2016 10:19 am

Rocky road for religious freedom

Niki Kelly The Journal Gazette

INDIANAPOLIS – When Connecticut and Rhode Island became the first states to pass their own Religious Freedom Restoration Acts in 1993, there were no protests or boycotts or national ridicule.

The frenzy was similarly missing when 17 other states joined the list – mostly in the 1990s and early 2000s.

So what launched the firestorm that raged in Indiana the last week? A mix of social climate changes and modifications to the bill that distinguish it from others. Plus some good old-fashioned blunders.

Lawmakers rushed through a legislative fix Thursday to calm a national turmoil costing Indiana jobs and economic activity. But many were still scratching their heads over how it exploded in the first place.

The tipping point was Gov. Mike Pence’s subpar performance on "This Week" on ABC last Sunday, said Andrew Downs, director of the Mike Downs Center for Indiana Politics. That turned it from a state embarrassment to a national one.

"The opportunity came because I think so many people responded so quickly to the private signing of the bill," he said.

Especially when photos of the signing surfaced on Twitter of Pence and three of the state’s most high-profile opponents to gay marriage.

But dissension on the bill was always there – from the first hearing to the last.

"The recent developments regarding same-sex marriage ratcheted up the attention," said Deborah Widiss, associate professor of law at the Maurer School of Law in Bloomington. "There is a connection, even if legislators didn’t intend it."

Pence has repeatedly claimed the law is no different from the federal legislation – but the times are.

Back in 1993 when the original federal Religious Freedom Restoration Act was passed, the debate over gay marriage was in its infancy. Democrat President Bill Clinton signed the bill into law – a fact often cited by GOP leaders. But he also signed the Defense of Marriage Act in 1996, which deprived legally married same-sex couples hundreds of protections at the federal level.

Compare that to now and you see a different world.

Gay marriage is legal in 37 states. Indiana joined that list in 2014 thanks to federal judicial rulings. Those decisions also derailed a long-fought attempt to enshrine a same-sex marriage ban in Indiana’s Constitution.

Meanwhile, Clinton has said he regrets signing the Defense of Marriage Act. The U.S. Supreme Court struck it down, and polling has shown growing support for gay marriage rights across the nation and in Indiana.

Also, the reason for the federal religious freedom bill was very different back then.

It was written in response to a U.S. Supreme Court ruling that didn’t give protection to two Native Americans fired for using peyote in a religious ceremony. The public was outraged, and the federal law was drafted requiring courts to use the highest level of scrutiny when considering religious beliefs.

White House Press Secretary Josh Earnest said last week that Pence has falsely suggested the Indiana law is the same as the federal law.

"The reason that that’s not true is that the 1993 law was an effort to try to protect the religious liberty of religious minorities based on actions that could be taken – taken by the federal government," he said.

Eight states followed the federal government’s lead in the 1990s, then seven more in the early 2000s.

Indiana legislators had filed the bill multiple times here. Rep. Jeff Thompson, R-Lizton, filed it every year from 1999 through 2004. But Democrats controlled the House chamber, and the bill never received a hearing.

Then in 2005, he filed it again. This time, Republican House Speaker Brian Bosma was in charge, but the bill didn’t move forward. So Thompson stopped filing it. No such legislation was filed by any Indiana lawmaker from 2006 through 2014.

The last four states adopted it since 2010, and the conversation shifted to religious liberty of the majority against government overreach. That also coincides with the rise of marriage equality; Indiana’s fight over gay marriage left a lot of hard feelings among social conservatives.

But opponents can’t definitively say the measures were linked, because another key development occurred: The U.S. Supreme Court ruled in July that the Affordable Care Act could not force certain businesses, including Hobby Lobby, to provide birth control against their religious beliefs. The federal Religious Freedom Restoration Act test was used in making the decision.

Lawmakers here say that’s the reason they pushed the law for Indiana – not gay marriage.

"It was only after the Hobby Lobby case last year that legal scholars took a look at Indiana and said ‘hey, your case law doesn’t follow the majority of the rest of the country. Here’s the solution,’" Bosma said.

Supporters also contend it’s just like the federal law. But it does have some key differences. The biggest is that the legislation allows businesses and corporations to state religious beliefs. That is not a provision of the federal law, but the U.S. Supreme Court interpreted it that way in the Hobby Lobby case.

So that’s how Indiana legislators wrote the bill. But Widiss, the law professor, said Indiana judges might not have the same interpretation of a state law.

Earnest noted that Indiana’s law "doesn’t just apply to interactions with the government. It also applies to private transaction as well.

"This is a much more open-ended piece of legislation that could reasonably be used to try to justify discriminating against somebody because of who they love."

Arizona put a religious freedom law on the books in 1999 but tried to expand it in 2014. The governor there vetoed it after a smaller-scale revolt than in Indiana. Arkansas Gov. Asa Hutchinson this week rejected a bill from his legislature until it was made to mirror the federal law.