BY BTL STAFF
INDIANAPOLIS — Indiana Gov. Mike Pence signed SB 101 March 26, which was authored with the intent of ensuring that the government cannot force a citizen to violate their religious beliefs.
In spite of overwhelming opposition from corporations, civil rights advocates and major convention organizers, Pence signed into law a sweeping bill that will allow individuals to use religion as an excuse to discriminate against the LGBT community and minorities.
"The timing of this legislation is important to understanding its intent: The bill was introduced as a backlash reaction to achieving marriage equality for same-sex couples in Indiana," said Jane Henegar, executive director of the ACLU of Indiana. "We are deeply disappointed that the governor and state lawmakers have been tone-deaf to the cries of legions of Hoosiers — including businesses, convention leaders, faith communities and more than 10,000 people who signed petitions against the bill — who say they don't want this harmful legislation to impair the reputation of our state and harm our ability to attract the best and brightest to Indiana."
Supporters of SB101 say that it is modeled after Arizona's SB 1062 that Gov. Jan Brewer vetoed last year following strong opposition from the local and national business communities and claims to also be highly influenced by the federal Religious Freedom Restoration Act. However, a closer look into the bill will show that Indiana's RFRA and the federal RFRA are very different.
The Indiana law explicitly allows any for-profit business to assert a right to the "free exercise of religion." The federal RFRA doesn't include that specific language and only one other state of the 19 with RFRA bills, South Carolina, includes such language. Louisiana and Pennsylvania, for example, explicitly exclude for-profit businesses from the protection of their RFRAs.
The Indiana law states: "A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding."
No other state that has passed RFRAs has language to such a degree. Texas, which passed its RFRA in 1999, contains similar but not identical language. The Indiana statute explicitly recognizes that a for-profit corporation has "free exercise" matching those of persons or churches, following the example set by the U.S. Supreme Court in 2014 with Burwell v. Hobby Lobby Stores, which determined that corporate employers have a religious veto over their employees' statutory right to contraceptive coverage and under RFRA could be considered persons. Ruth Bader Ginsberg had called the majority ruling "a decision of startling breadth."
In response to Gov. Pence's public support of the bill, widespread discontent was voiced by business and faith communities: Indianapolis Colts player Pat McAfee, Salesforce, the Christian Church (Disciples of Christ) and Jason Collins, the first openly gay NBA player.
A letter from nine Indiana CEO signatories — which had some of the state's largest employers including Eli Lilly, Anthem and Indiana University Health — arrived on Pence's desk Monday stating " (we are) deeply concerned about the impact it (RFRA) is having on our employees and on the reputation of our state." Other signees of the letter include: Bill Oesterle, influential Indiana Republican and CEO of Angie's List; Joseph Swedish, CEO of Anthem; Jeff Smulyan, CEO of Emmis Communications; Dan Evans, CEO of Indiana University Health; Jack Phillips, CEO of Roche Diagnostics; Scott McCorkle, CEO of Salesforce Marketing Cloud; John Lechleiter, CEO of Eli Lilly and Co.; and Tim Hassinger, CEO of Dow AgroSciences.
Chairman of Kittle's Furniture and former Chairman of the Indiana Republican Party, Jim Kittle Jr., also came out in opposition to the RFRA bill. Oesterle was so outraged by the legislation that he canceled his company's proposed plan to use $18 million in state and city aid to expand its headquarters.
Marc Benioff, CEO of Salesforce, a $4 billion software giant known for its customer relationship management applications, has already noted that they are now forced to dramatically reduce investment in the state because of outrage from employees and customers over the new law; they are canceling all programs that require customers and employees to travel to Indiana.
Over the weekend Pence said that he is open to a clarification of the bill and states that the intention was not to discriminate against the LGBT community. In an Op-Ed written for the Wall Street Journal, Pence states the bill "has been grossly misconstrued."
"I want to make clear to (Indiana residents) and every American that despite what critics and many in the national media have asserted, the law is not a 'license to discriminate,' either in Indiana or elsewhere," Pence wrote.
Indiana Republicans pledged March 30 to clarify the bill. The ACLU of Indiana and an anti-RFRA coalition called for two major changes to the bill: updating the state's civil rights law to prohibit discrimination against gay, bisexual and transgender Indiana residents in employment, housing and public accommodations and clarifying that RFRA can't be used to undermine local or statewide civil rights protections.
Indiana does not currently have statewide protections for sexual orientation and gender identity and Pence has stated on multiple occasions that that is not on his agenda.
Since Jan. 22, different RFRA bills have been introduced into state legislatures. Michigan is one of 13 states with proposed RFRA bills, according to the ACLU. The Michigan Religious Freedom Restoration Act was introduced in the lame duck congressional session last year as an attempt by Republican lawmakers to protect "religious freedom." However, once the 2015 legislative cycle began, Republican lawmakers began introducing a stream of religious freedom measures. The Michigan bill is currently sitting in a state Senate committee.
