Indiana’s week-old religious freedom law has prompted a massive backlash: A number of corporations and celebrities have condemned the law as a license to discriminate against the LGBT community, and some states have even implemented travel bans, barring government employees from visiting Indiana.
Rarely, if ever, has there been such a rapid mobilization of boycotts, sanctions, and denunciations against a lone US state. Yet, in some ways, this law is an unusual target. Nineteen other states have similar laws. And in Indiana, you don’t always need religious grounds to discriminate against gay people. There’s no state law that would make such discrimination illegal in the first place.
What’s a religious freedom law?
Religious freedom laws, also called Religious Freedom Restoration Acts, or RFRA, are designed to ensure that people aren’t forced to betray their religious convictions, unless absolutely necessary.
In 2008, for instance, a Native American boy in Texas was told he’d have to cut his hair to enter kindergarten. When his parents objected, noting that long hair is part of their religious tradition, they won their case thanks to a religious freedom law.
Is Indiana’s law different?
There are some differences between Indiana’s law and others. For one, Indiana makes it easier for businesses to claim religious protection. It also applies to cases between private groups, rather than just those involving the government.
Why has there been so much pushback?
Religious freedom laws have become part of the broader fight over gay rights.
In a number of high-profile cases, small businesses have invoked religious freedom bills to justify their refusal to serve gay couples — including one infamous instance where a bakery refused to provide a cake for a same-sex wedding.
Courts have consistently rejected these kinds of claims, ruling that religious sentiments can’t justify outright discrimination. But again the Indiana law is slightly different and there’s at least some chance state courts could side, instead, with businesses that refuse to serve LGBT people.
Is there a bigger issue?
One of the ironies of this fight is that even if Indiana wanted to let religious groups or devout businesses discriminate against members of the LGBT community, it wouldn’t need a religious freedom law. It’s perfectly legal under state law to turn away customers who are LGBT or even to fire LGBT workers — just as it is in 28 other states.
This lack of protection for LGBT people doesn’t hold everywhere, because many big cities have ordinances preventing such discrimination, but the state itself has no such law.
When I spoke about this issue with University of Illinois law professor Robin Wilson, she expressed concern about the nationwide focus on Indiana’s new law, suggesting that it was overlooking this broader lack of protection for LGBT people. What’s more, she emphasized that when you stigmatize religious freedom laws, you make it harder to forge the kind of bipartisan compromises that could protect both gay rights and religious rights. As, for instance, the compromise recently passed in Utah.
Who has come out against the law?
Apple CEO Tim Cook, gay rights advocate and “Star Trek” legend George Takei, not-quite-presidential candidate Hillary Clinton, the NCAA, the Indianapolis Star, and NASCAR have all expressed opposition to the law.
This chorus of voices has inspired threats of business boycotts and even an official push in Connecticut, New York, Washington, and a number of cities to block nonessential travel to Indiana by government employees.
While this breadth of mobilization is unusual, it’s not unprecedented. A series of similar backlashes have plagued Arizona in recent decades — once for refusing to recognize Martin Luther King Day, again for encouraging police to ask about people’s immigration status, and most recently after an effort to let businesses discriminate against gay people.
Who is defending the law?
While several leading conservatives have come out to support the law, so have a number of legal scholars. They emphasize that despite the heated rhetoric, religious freedom laws aren’t designed to encourage discrimination and have never been used that way. They only protect religious beliefs in so far as those beliefs don’t trample on the rights of others.
Faced with such an overwhelming response, Indiana Governor Mike Pence has promised to make sure that the law does not become a license to discriminate. And in the wake of this controversy, similar bills being considered in Arkansas, Georgia, and North Carolina have been put on hold.
More broadly, though, the fight over gay rights is not going away. For years now, that battle has focused on marriage. But with same-sex marriage now legal in 37 states, and the Supreme Court widely expected to make it 50, the dynamics are starting to shift.
A range of states are pursuing new laws that would restrict the rights of LGBT people. As those bills move forward, this week’s rare and rapid surge of high-profile opposition may become a far more common sight.
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Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the United States. He can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeHorowitz