State legislators say law is not anti-gay and blame the reaction on a ‘mischaracterisation’. ‘What we had hoped for was a message of inclusion’

This article is more than 5 years old

This article is more than 5 years old

Indiana’s Republican legislative leaders said on Monday they were working on adding language to the state’s Religious Freedom Restoration Act (RFRA) to make it clear that it does not allow discrimination against gays and lesbians.

The move comes amid widespread outcry over the measure that prohibits state laws that “substantially burden” a person’s ability to follow his or her religious beliefs. The definition of “person” includes religious institutions, businesses and associations.



Brian Bosma, the speaker of the Indiana house of representatives, and David Long, the state senate president pro tem, said in a press conference that similar laws existed across the country and had not generated the backlash that Indiana’s had seen.

Indiana governor Pence says religious objection law won't be changed Read more

Bosma blamed the reaction on a “mischaracterization” of the law by both opponents and some supporters.



“What we had hoped for with the bill was a message of inclusion, inclusion of all religious beliefs,” Bosma said. “What instead has come out as a message of exclusion, and that was not the intent.”

In the days since Governor Mike Pence signed the RFRA, reaction has been swift and fierce.

The law is meant to protect citizens’ religious freedoms, and supporters such as Bosma and Long point out that Indiana is the 20th state to adopt its own version of RFRA, which Bill Clinton signed into federal law in 1993 when he was president.



The next day, the social media campaign #BoycottIndiana took over Twitter, and on Saturday hundreds gathered at the statehouse in Indianapolis to rally against the bill.

By Monday night, protesters were gathering again, this time in front of the Indianapolis City-County building. Protesters recited the pledge of allegiance, shouting the “for all” at the end of the oath.

Charlie De Mar (@CharlieDeMar) The pledge is recited. The last two words "for all" screamed by crowd pic.twitter.com/N7X4QQTCfu

Local businesses across the state capital have posted signs bearing the message that Indiana citizens, known as Hoosiers, will “not serve hate”.

The band Wilco canceled a performance in Indiana in protest to the law, and major Indiana-based businesses such as Angie’s List have put expansion plans on hold and other companies, like Salesforce.com, have stopped sending employees there for business.

“This is not just a gay issue, this is a Hoosier issue,” said city councilman Zach Adamson, the first openly gay elected councilman in Indianapolis. “We are, as a people, incensed about it.”

In October 2014, a surprise decision by the US supreme court made same-sex marriage legal in Indiana. Adamson, and many others, believe that the state’s RFRA was enacted in retaliation to this change.

“What was the impetus for creating this? What happened that all of a sudden you had to do this here?” said Adamson. “The answer is nothing – they lost the marriage battle and they are very upset.”

That “they” includes Pence, who has said he would support legislation to clarify the RFRA law, Senate Bill 101, but is adamant that it remains in place and that it is not state-sanctioned discrimination. He has also said that making LGBT citizens a protected class is “not on his agenda”.

Pence, long admired by billionaire conservative donors Koch Brothers, was seen as a dark horse Republican presidential candidate for the 2016 election, though this recent public relations disaster has in effect guaranteed he will not be on the ballot.

Mike Pence on George Stephanopoulos

On Sunday, Pence defended the bill in an interview with George Stephanopoulos on ABC’s The Week. The appearance inflamed opponents as Pence danced around questions about the law’s discriminatory implications and refused to directly answer questions about whether it gives businesses the right to deny service to LGBT people – six times.

“This is not about discrimination, this is about empowering people to confront government overreach,” he said. Asked again, he said: “Look, the issue here is still: is tolerance a two-way street, or not? … We’re not going to change the law.”

“The law is actually somewhat complicated, but the anti-gay politics behind the law are not complicated,” said Steve Sanders, a law professor at Indiana University at Bloomington’s Maurer school of law.



SB101 prohibits state and local government from substantially burdening a person’s religion, unless the government can prove that it has a “compelling interest” in enforcing such a decision, and that it is doing so using the “least restrictive means”.

Sanders said the law does not give businesses a license to discriminate, but heightens the standard the government must use to prove that it is not burdening a person’s religion. This is especially true for the “least restrictive means” clause, which Sanders said sets “an unusually high justification” for the government if it is challenged on religious grounds.

Governor Mike Pence (@GovPenceIN) I signed SEA 101 today to ensure religious liberty is fully protected under IN law http://t.co/vCOASZBZnH pic.twitter.com/CMFJh6aLDx

“It’s a way of giving religion special rights and more protection for something than is required under the baseline first amendment,” Sanders said.

Such legislation has been used for things like allowing Muslim men to grow their beards longer than half an inch in federal prisons. But the most ardent supporters of recent RFRA laws seem to be motivated by the rapid increase in states that allow same-sex marriage.

“These RFRAs have become the new anti-gay initiatives,” Sanders said. “The symbolism and the politics of the law are far more troubling and far more toxic than the actual substance of what the law will do itself.”

That symbolism compelled store owners in Indianapolis to put up signs that say: “Instead of hate, we proudly serve everyone,” “This Hoosier still opposes the anti-LGBT license to discriminate,” and “Open for service! We do not support the Religious Freedom Bill.”

That message is also being pushed by the state’s tourism board, VisitIndy, which now has a banner stating “All are welcome in Indy,” with a rainbow alongside it.

Businesses here rely on “Hoosier hospitality” to draw in moneymaking events like the NCAA Final Four basketball tournament, which said it was monitoring the law to see if it was still suitable to hold the event in the sporting body’s hometown.

Gen Con, a game convention that pumps money into local business, said it too was considering canceling plans to continue holding its convention in the city.



“We don’t have beautiful vistas or mountain ranges, waterfront property – we don’t have all that,” said councilman Adamson.

But what they do have, he said, is a relatively low cost of living, a growing urban core and “incredibly hospitable people and really decent people to be around”.

That is why on Monday night, he and other members of the city council will introduce a resolution against SB101 that would block it from being enforced in Indianapolis, one of a handful of places in the state that has an ordinance blocking employment discrimination on the basis of gender identity.

Council vice-president John Barth said that SB101 and the international reaction to it has nearly undone the work by he and past city council employees to make Indianapolis an attractive site for tourists, businesses and events. The city still recalls its success as the host of the 2012 Super Bowl, widely regarded as the best in recent history.

“It’s really painful to watch, because what is being presented is the opposite of what Indianapolis is,” Barth said.

Facebook Twitter Pinterest Saturday Night Live’s skit about the law.

His concerns are shared by born and raised Hoosiers in Indianapolis who watched as their state became the subject of social media hashtags and a Saturday Night Live skit in 48 hours.

“Everything is on the up and up, and all of a sudden something like this gets passed – it’s so silly,” said Nate Weaver, general manager of Indianapolis restaurant Forty Five Degrees.

“We just took a 100- to 150-year jump backward,” said Austin Clevenger, who works in the video industry and attended Saturday’s rally against SB101.

In February, the Arizona governor, Jan Brewer, vetoed the state’s RFRA after major corporations and athletic groups condemned the bill. Last week, Georgia’s legislature tabled its RFRA amid growing concerns voiced by corporations based in the state.

Marci Hamilton, author of God vs the Gavel and chair of public law at the Benjamin N Cardozo School of Law, has been fighting RFRA laws for nearly two decades.

She is confident that these laws will suffer at the hands of the free market and more inclusive attitudes from younger generations. “Given the trajectory of the emerging views of the young people combined with the cost of fighting a bill and then being deemed as bigots, I think the cost is too high,” Hamilton said.

The Associated Press contributed to this report