On ABC's Sunday program "This Week," Indiana Gov. Mike Pence gave a career-ending performance
in which he repeatedly refused to answer
whether Indiana's new "religious freedom" law, SB 101, allows discrimination against gays and lesbians (#NotReadyForPrimeTime). Pence also likened SB 101 to the federal Religious Freedom Restoration Act (RFRA) signed into law in the '90s and those adopted by about 19 states since. Then he added
And after last year's Hobby Lobby case, Indiana properly brought the same version that then state senator Barack Obama voted for in Illinois before our legislature. And I was proud to sign it into law last week.
Lies. All of it. Indiana's new law is substantially different than both the 90s-era RFRAs and there is no parallel to be drawn between Indiana now and the Illinois bill Barack Obama voted for 17 years ago
First, these new RFRAs aren't even close to the same as those that have been passed by other states over the last couple decades. The new ones are RFRAs on steroids. The old RFRAs were meant to keep the government from infringing on the religious beliefs of individuals. The new ones vary, but they almost all apply to private disputes. That is new and will allow people to use their religious beliefs as a defense if they are sued for discrimination by another individual.
Here's more from a real lawyer, Jenny Pizer at Lambda Legal:
SB 101 is substantially broader than the federal law. It extends religious rights to all businesses, no matter how large and completely secular they are. In addition, the federal law can only be invoked against government action. SB 101 goes much further, inviting discrimination by allowing religious beliefs to be raised as a defense in lawsuits and administrative proceedings brought by workers, tenants and customers who have suffered discrimination in a business transaction based on someone else’s religious beliefs.
Head below the fold to find out how Pence lied by comparing Indiana to Illinois.
Second, Indiana's situation is nothing like the one in Illinois, most importantly, because Illinois actually added sexual orientation and gender identity protections to its statewide civil rights law in 2004. Indiana provides no such protections (and Pence assured Stephanopoulos he would not push for them). However, according to Lambda Legal, a dozen Indiana municipalities do have varying nondiscrimination protections. But those protections could now be compromised by the new state RFRA because people can use it to defend against suits that claim discrimination.
Here's Pizer again.
This matters because those seeking to discriminate in Indiana may claim that the lack of a statewide law barring sexual orientation and gender identity discrimination means that there is no compelling state interest even to enforce local ordinances providing such protections.
It is important to remember that federal law provides no explicit protections on the basis of sexual orientation and gender identity. So unless a state or a local jurisdiction provides those protections, people have free rein to discriminate against LGBT people (the only exception is that transgender workers are increasingly viewed as covered by the sex discrimination protections in Title VII). Many of these new RFRAs are being considered in states that provide no such protections, so enacting a RFRA stands to weaken any protections provided by municipalities within the state.
It is also important to watch a shortened remix of Pence trying to dodge the repeated questions of George Stephanopoulos—eight different times. Very important.