early and awkward

Did Indiana Just Legalize LGBT Discrimination? Governor Pence Can’t Say

Immediately after Indiana governor Mike Pence signed the Religious Freedom Restoration Act into law last week, the new law was bashed by everyone from Miley Cyrus to Hillary Clinton for making it easier for businesses to refuse to serve gay customers by claiming religious freedom. Over the weekend hundreds protested the law at the Indiana statehouse, Angie’s List froze a $40 million expansion in the state, and Apple CEO Tim Cook denounced the “very dangerous” law in a Washington Post op-ed.

With furor over the law growing, Pence appeared on ABC’s This Week, saying he was “determined to clarify” the law and “correct the gross mischaracterization” that’s been spread by “many in the media.” Then he failed to do so in a spectacular fashion. Host George Stephanopoulos repeatedly asked the key question — “if a florist in Indiana refuses to serve a gay couple at their wedding, is that legal now in Indiana?” — but each time Pence refused to give a yes or no answer.

Instead, he repeatedly said that the law is based on the 1993 Religious Freedom Restoration Act signed into law by President Bill Clinton, and President Obama supported a similar law when he was an Illinois state senator (which PolitiFact rated only “half true“). Noting that many people feel their religious liberty is being infringed upon following the implementation of Obamacare and the Supreme Court’s Hobby Lobby decision (which religious employers actually won), Pence said the purpose of the legislation “is very simply to empower individuals when they believe that actions of government impinge on their constitutional First Amendment freedom of religion.”

Pence also said he’d be open to adding a section to the bill that “reiterates and amplifies and clarifies what the law really is,” but confusingly also insisted “we’re not going to change the law.” And when Stephanopoulos asked Pence if he thinks “it should be legal in the state of Indiana to discriminate against gays or lesbians?” outside the context of the law that just passed, he still couldn’t give a clear yes or no. (Pence answered, “Come on. Hoosiers don’t believe in discrimination!” and pointed out that they’re really nice, which probably means “no.”)

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A large part of the reason Pence had a hard time clarifying what the law means in practice is because no one’s really sure. The Religious Freedom Restoration Act says “a governmental entity may not substantially burden a person’s exercise of religion” unless there’s a “compelling governmental interest” or it’s “the least restrictive means of furthering” that interest. There’s no specific mention of sexual orientation, but opponents didn’t make up that interpretation. Eric Miller of Advance America, one of the key lobbyists behind the bill, said on his website that the law will ensure:

  • 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!

Plus, Indiana conservatives began pressing for the law after they lost their fight to block marriage equality in the state a year ago.

Courts will decide whether the law actually bolsters the case of business owners who refuse to serve gay people and lesbians, and legal experts are divided on how they’ll rule. As the Indianapolis Star explains, while about a dozen cities in Indiana have laws that specifically protect gay people and lesbians, there are no LGBT protections in statewide nondiscrimination laws. (And Pence says he will not push to make gay people and lesbians a protected class.) The paper says it’s “difficult to find an analogous case” from another state to predict what would happen if someone discriminated against an LGBT individual for religious reasons in Indiana.

So, while it wouldn’t have improved Pence’s Sunday show performance, the most correct answer to Stephanopoulos’s questions is probably “maybe.”

Did Indiana Okay Discrimination? Pence Can’t Say