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Indiana Gov. Mike Pence decried an "avalanche of intolerance" directed at his state Sunday after he signed a law that he says protects the religious freedom of Hoosiers.
Critics, however, say it is Pence and Republican lawmakers who are promoting intolerance, with civil rights advocates and business leaders of Apple and Indiana-based organizations such as the NCAA and Angie’s List wary of the state’s new Religious Freedom Restoration Act opening the door for discrimination against gays and lesbians based on religious belief.
That fear is overblown, Pence said on ABC This Week on March 29, 2015, pointing to support for similar legislation from two of the country’s highest-profile Democrats as evidence: President Bill Clinton, who signed the federal Religious Freedom Restoration Act in 1993, and President Barack Obama.
Sexual orientation "doesn’t have anything to do with" the law, Pence said.
"Then state-Sen. Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state senate of Illinois," Pence said. "The very same language."
While Pence would not answer if Indiana businesses could refuse to serve gay couples, he repeated his point about Obama a few times. So we wanted to fact-check it.
The bottom line: As an Illinois state senator, Obama did vote for a version of the Religious Freedom Restoration Act. It passed the Illinois Senate 56-0 and became law on July 1, 1998.
However, the language isn’t the "very same," and the claim is not as simple as lining up one vote next to the other and declaring them equal, experts told us.
Then and now
The 1993 federal Religious Freedom Restoration Act was signed by Clinton with overwhelming bipartisan support. The bill passed the House unanimously and 97-3 in the Senate. The intent of the bill was to protect religious practices from government interference, such as whether a Muslim prison guard could wear a beard, or if a Jehovah’s Witness needed special coverage for medical procedures because he or she is against blood transfusions, or Native American religious practices.
States started passing their own laws when the U.S. Supreme Court decided in 1997 that the federal Religious Freedom Restoration Act signed did not apply to the states. Since then, 19 states have passed their own laws. Many, like Illinois, did so in the initial wave.
Fast-forward to the current climate. The U.S. Supreme Court is expected to weigh in on the constitutionality of same-sex marriage bans. Meanwhile, same-sex marriage bans in states like Indiana have been struck down by lower courts, dramatically changing the concept of legal marriage at breakneck speed.
Conservatives in Indiana and elsewhere see the Religious Freedom Restoration Act as a vehicle for fighting back against the legalization of same-sex marriage.
When Pence signed SB 101 in a private ceremony, three people who work for groups that supported the same-sex marriage ban and want to limit civil rights for gays and lesbians were in attendance. One of the lobbyists, Eric Miller of Advance America, heralded the state’s law as protecting Christian bakers, florists and photographers from penalty "for refusing to participate in a homosexual marriage, among other examples." This is a direct reference to high-profile cases of Christian wedding vendors refusing to provide services for gay couples in other states.
In his ABC interview, Pence said Indiana’s law followed the Hobby Lobby case before the Supreme Court last year, in which the court ruled 5-4 that the federal Religious Freedom Restoration Act protects family owned corporations from being forced to offer insurance that covers contraception under the health care law.
In one sense, there isn’t all that much difference between the bill that got Obama’s vote in Illinois 17 years ago and the bill that Pence signed into law last week. But how people want the law applied, on top of other legislative changes, has changed the landscape dramatically, said Steve Sanders, Indiana University Maurer School of Law professor of family and constitutional law.
"What has completely changed are the politics around the issue, the symbolism of what voting for one of these laws means," Sanders said.
In other words, it’s how some conservatives want Indiana’s law to work that fosters fear among civil rights advocates for how it might.
Still, constitutional law professors say both sides are misinterpreting the point of these laws. The courts have not approved exemptions to discriminate against gays under religious freedom laws, and likely would not because the government has a compelling interest in protecting civil rights.
The two sides are essentially yelling past one another about a non-issue when they should be working on enacting protections based on sexual orientation in Indiana, said Robin Fretwell Wilson, professor and director of the family law and policy program at the University of Illinois College of Law.
"If there’s a license to discriminate in Indiana, it’s the fact there’s an absence of a statewide law that makes a promise to the LGBT community," she said. "RFRA is about minoritarian religion against government, by and large."
Indiana and Illinois are neighbors in geography but strangers in their approach to gay rights. This difference adds another layer of context to consider with Pence’s claim.
In 2004, Illinois lawmakers passed anti-discrimination laws based on sexual orientation for housing, employment, public accommodation, credit and other measures. Nine years later, the state passed a same-sex marriage law.
These protections did not exist in the state when Obama cast his vote, but same-sex marriage was not part of the discussion as it is now, as it was not yet legalized, Wilson said.
Pressed by Stephanopoulos, Pence said he would not seek protections based on sexual orientation in Indiana and would not say whether Hoosiers could refuse services to gays or lesbians.
"To say, ‘We did what Illinois did,’ without acknowledging the fact that Illinois gave protections, really misses the real debate," Wilson said.
An Indianapolis Star exploration of what the law means for the state suggested LGBT rights may succeed in RFRA challenges in the few cities that have passed nondiscrimination ordinances. But whether the state as a whole has a "compelling interest" in protecting LGBT rights over religious beliefs remains to be seen, the report said.
Lambda Legal, a nonprofit that fights for gay rights, said Indiana’s lack of protections for gays and lesbians is important because people who do not want to take business from gays and lesbians "may claim that lack of a statewide law barring sexual orientation and gender identity discriminating means that there is no compelling state interest in enforcing local ordinances providing such protections."
Sanders of Indiana University said the problem is that people in Indiana might think they can discriminate against gays and lesbians now even if a court does not eventually side with them.
"The fine print is that if someone wants to discriminate, they have to be able to argue in court for that right, and the court will eventually decide," Sanders said.
Difference in wording
The wording of each state’s law is similar in that neither mentions sexual orientation or discrimination. But the Human Rights Campaign, which opposes Indiana’s law, says the law is fundamentally different than the federal version and Illinois’ over its definition of "person."
Under Indiana’s post-Hobby Lobby law, a "person" is extended to mean "a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association" or another entity driven by religious belief that can sue and be sued.
To the Human Rights Campaign, this nullifies Pence’s claim that his law is nothing new from the Illinois law.
"That means a corporation in Indiana has a cause of action to sue the government claiming religious personhood for the purposes of this law," said HRC spokesman Adam Talbot.
To Wilson, the inclusion of a corporation is not surprising. It was not typical to define "person" in religious freedom legislation, she said, which gets to the heart of the Hobby Lobby case. The Supreme Court decided laws could be applied to "closely held" companies operating on religious belief.
Further, all three laws contain the "same critical language" that if someone feels substantially burdened by a regulation or law, the government has to justify a "compelling government interest" for it to the court, said Douglas Laycock, a University of Virginia constitutional law professor (Laycock and Wilson co-signed a letter to Indiana Senate Republicans in support of SB 101 not because its effects will be "radical" but but because it offered "more transparent and more secure" protections of religious liberty.)
The Illinois law does not address the "person" question because it mirrors the federal law, which was interpreted to apply to corporations because the U.S. Code includes "corporations" as a person, Laycock said.
"As a practical matter, there are almost no cases involving corporations because very few are running on religious lines," Laycock said.
The American Civil Liberties Union, meanwhile, is concerned about another difference in the wording of the two laws. Indiana’s law includes language that allows people to claim a religious freedom exemption "regardless of whether the state or any other governmental entity is a party to the proceeding."
That language is absent from the Illinois law.
"The Illinois law was written and designed to allow someone to change the government’s burdens on people’s religious beliefs," said Eunice Rho, American Civil Liberties Union advocacy and policy counsel. "The Indiana law specifically says you can use the law in a lawsuit even if the government isn’t a party."
Ultimately, judges will have to interpret the intent of the Indiana law’s language. But that doesn’t change that there are differences between it and the counterpart in Illinois.
Pence played defense Sunday, saying, that sexual orientation "doesn’t have anything to do with" the Religious Freedom Restoration Act," adding that "then state-Sen Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state Senate of Illinois. The very same language." A spokeswoman for Pence did not respond.
The vote is clear enough, as is the name of the bill, but Pence’s explanation is an oversimplification of the purpose of the law then and the motivation of some pushing the law now.
Proponents of this law are pushing the measure as a way that businesses can seek protection "for refusing to participate in a homosexual marriage." Whether that argument will win in the courts is up for debate. That was far from an intent of Illinois’ law, or the others passed more than 15 years ago.
As for the language itself, Pence is incorrect to say the language is the same. Some pro-LGBT rights groups say the outright inclusion of a corporation or company as a "person" is overly broad, though the true impact will likely only really be settled when matters are sent to a court.
Overall, Pence’s claim is partially accurate but misses important context. We rate it Half True.
Interview with Douglas Laycock, University of Virginia constitutional law, March 29, 2015
Interview with Robin Fretwell Wilson, University of Illinois College of Law professor of law and director of the family law and policy program, March 29, 2015
Interview with Steve Sanders, Indiana University Maurer School of Law professor, March 29, 2015
Interview with Adam Talbot, Human Rights Campaign spokesman, March 29, 2015
Interview with Eunice Rho, American Civil Liberties Union counsel, March 29, 2015
Indianapolis Star, "What the religious freedom law really means for Indiana," March 29, 2015
National Conference of State Legislatures, "State Religious Freedom Restoration Acts," March 13, 2015
Letter from law professors to Indiana Senate Judiciary Committee, Feb. 3, 2015
Enrolled Indiana Senate Act 101, accessed March 29, 2015
Indiana Senate Republicans, "Protecting religious freedom," March 26, 2015
Chicago Tribune, "Illinois law on religious objection balanced by discrimination ban," March 27, 2015
Human Rights Campaign blog, "HRC to Governor Pence: No Phony "Clarifications" of S.B. 101," March 29, 2015
Session transcript from Illinois’ 90th General Assembly, March 13, 1998
Case Western Law Review article by Robin Fretwell Wilson, "Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections," spring 2014 (see table A2: State-Wide Sexual Orientation Nondiscrimination Measures)
National Conference of State Legislatures, States with Religious Freedom Restoration Acts and 2015 State Religious Freedom Restoration Act legislation, accessed March 29, 2015
Advance America, "Victory at the state house!" March 26, 2015
Statement from Lambda Legal, "Lambda Legal to Gov. Pence: Stop Deceiving the Nation on SB 101," March 29, 2015
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