In what the Indianapolis Star calls “the deepest crisis of his political career,” Mike Pence, Indiana’s Republican governor, continues to support his state’s recently passed Religious Freedom Restoration Act. Speaking to the paper on Saturday, Governor Pence said that whilst he will seek legislation “clarifying” the intent of the law, he stands behind it. The massive backlash, he insists, is due to “misunderstanding driven by misinformation.”
This has been a common refrain among supporters of the RFRAs popping up in state houses throughout the country. To date, 19 states have passed laws similar to the federal one which, as conservatives like to use as a trump card, was signed into law by that Democratic darling President Clinton. (You know, the man who also signed the Defence of Marriage Act and Don’t Ask, Don’t Tell?) Indeed, Governor Pence couldn’t help but mention this fact in a statement released after a private signing of the law, while also citing similar laws in neighbouring states Illinois and Kentucky.
Now, as chance may have it, I live in Illinois, which passed an RFRA in 1998, a year after the Supreme Court ruled the federal RFRA did not apply to the states. However, as the Chicago Tribune reported earlier this week, Illinois lawmakers have balanced RFRA with statewide protections for LGBT people. Before moving to Chicago nearly four years ago, though, I lived a decade in Kentucky, the state I still call home.
Kentucky’s law—passed in 2013—was initially vetoed by Governor Steve Beshear, a Democrat. It became law when the General Assembly, including the Democratic-controlled House of Representatives, overrode the governor’s veto. But some conservative activists said the law would not have any real consequences for LGBT Kentuckians. “This law isn’t going to have an effect they think it’s going to have,” Martin Cothran, of the right-wing Family Foundation of Kentucky, told the Associated Press at the time. “All of the case law is going in the other direction. It’s not going in the direction of over-protecting people’s religious freedom. We’d like to see something a lot stronger than this.”
A year later Cothran’s wish was granted. In a landmark—and now infamous—decision, the US Supreme Court ruled that crafting giant Hobby Lobby could not be mandated to provide contraception to its employees, as it violated the company’s First Amendment right to free expression of religion. In this brave new world where corporations are people, states such as Arizona, Mississippi, and now Indiana were emboldened to pass their own RFRA laws, which broadened the scope of protection to include corporations and businesses. These laws were worded so vaguely that even some Republicans, such as the mayor of Indianapolis and, most famously, former Arizona governor Jan Brewer came out in opposition, the latter vetoing her own state’s RFRA because of fears it could lead to “unintended and negative consequences” and hurt businesses, something that is beginning to happen in Indiana.
But the ability to discriminate against LGBT people is a very intentional consequence of the Indiana bill, despite what Governor Pence says. As Buzzfeed reported, Indiana’s law allows for a RFRA defence even when the government is not party to a lawsuit, which is something the federal RFRA doesn’t do. It also allows this defence to be mounted against any state or local law, which as the potential of invalidating the citywide fairness ordinances a handful of Indiana jurisdictions have passed. This means the potential exists for landlords, hotels, and restaurants to openly discriminate against LGBT people, something which has already begun. A restaurant owner called Ryan phoned an Indiana radio station to say that not only has he already discriminated against gay people, but he intends to do so in the future, as the law allows.
And while Governor Brewer feared “unintended consequences” in Arizona, this was very much the intended consequence in Indiana. Governor Pence invited several right-wing lobbyists who worked to pass the bill to the private signing. One of them was Micah Clark of the American Family Association of Indiana (AFAIN). The Southern Poverty Law Center considers the AFA an anti-LGBT hate group, and AFAIN’s website shares many homophobic and transphobic stories. It also includes a quote from then-Congressman Mike Pence, praising the organisation and its Indiana leader. “I have known and worked with Micah Clark for over a decade,” Pence is quoted, “and I can tell you that you’re standing behind a pro-family, pro-life leader…” (“Pro-family” has long been a conservative dog whistle meaning “anti-LGBT”.)
Another of the lobbyists present at the singing was Eric Miller of Advance America, which not only has a history of transphobic and homophobic rhetoric, but actually posted a blog on its website following the bill’s success, which read in part:
“[RFRA] will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers). Here are just three examples:
- Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
A church should not be punished because they refuse to let the church be used for a homosexual wedding! [emphasis is original]
It doesn’t get much clearer than that. Governor Pence can repeat himself until he’s blue in the face, but it doesn’t change the fact that Indiana’s RFRA was clearly intended to and will allow discrimination against LGBT Indianans. The Religious Freedom Restoration Acts being passed now—the next battleground is Arkansas—are not meant, as the federal law and the 1998 Illinois law, to protect religious minorities from burdensome government regulations. They are meant to allow merchants operating in the public marketplace to refuse service to those they don’t like.
This law is nothing more than state sanctioned homophobia and transphobia, and no amount of “clarification” will change that.