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March 31, 2015 Practice Points

Indiana's Religious Freedom Restoration Act Sparks Controversy

By Joshua Sato

On March 25, 2015, Governor Mike Pence of Indiana signed the "Religious Freedom Restoration Act" (RFRA), immediately sparking national controversy and numerous threats of boycotts by businesses, organizations, and entertainers. The RFRA allows any individual or business to invoke its religious beliefs as a defense when sued by a private party. While the law does not specifically mention sexual orientation, prominent anti-gay advocates were present at the signing of the bill, and support for the law grew after Indiana's gay-marriage ban was overturned in federal court.

Advocates for the bill claim that it is similar to the federal RFRA signed into law in 1993 by President Bill Clinton and the RFRA laws that already exist in 19 other states. However, Indiana's RFRA differs from the federal RFRA and the vast majority of already existing state RFRAs by guaranteeing the right to free exercise of religion of for-profit businesses and applying to legal disputes between individuals, even if the government is not involved. In addition, most other RFRAs are decades old and were passed before the dramatic surge in support for gay marriage across the country. The Republican Governor of Arizona Jan Brewer vetoed a similar RFRA bill in 2014 partially out of fear for the kind of boycotts currently being threatened against Indiana.

On Tuesday, March 31, the Indianapolis Star ran a front page editorial calling upon Governor Pence and the Indiana General Assembly to enact a state law to prohibit discrimination in employment, housing, education, and public accommodations on the basis of a person's sexual orientation or gender identity. Indianapolis mayor Greg Ballard also spoke out against the bill, stating that "Discrimination is wrong. And I hope that message is being heard loud and clear at our Statehouse." He also signed an Executive Order reiterating that businesses in Indianapolis must abide by its human rights ordinance, which bars discrimination on the basis of categories that include sexual orientation and gender identity. The NCAA has expressed concern over holding the Final Four in Indianapolis. Organizers for Gen Con, the largest gaming convention in North America, stated that the passage of RFRA will factor heavily into their decision to hold future conventions in Indianapolis. The CEOs of Apple, Salesforce, CA Technologies, and Yelp have publicly spoken out against the law. The mayors of Seattle and San Francisco have also banned city-funded travel to Indiana.

Following the outcry over RFRA, Governor Pence stated on ABC's This Week that he is "determined to clarify" the law and denied that it was intended to legalize discrimination. He claimed that the law has been grossly mischaracterized by the national media and is solely focused on protecting religious freedom. He went on to state on March 31, 2015, that he wants the General Assembly to make it clear businesses are not allowed to deny services to anyone. However, he refused to support adding protections specifically based on sexual orientation and gender identity and dismissed the possibility of overturning the law. Leaders from Indiana's Republican-controlled legislature expressed surprise that RFRA sparked such controversy, as they do not believe that it encourages discrimination or the denial of services to any particular group of people. However, in light of the controversy, they confirmed that they intend to introduce language to clarify the bill's language and emphasize its lack of support for discrimination.

Keywords: minority trial, litigation, Indiana, religious rights, RFRA, gay rights, LGBT, same-sex couple, same-sex marriage

Joshua Sato is with Milbank Tweed in New York, New York.

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