Selective Applications of the Law in Indiana Part 1

Image from Wikimedia Commons under Creative Commons Attribution. Thanks to user Fry1989 for uploading and sharing.

As someone living in Indiana right now, I’ve been hit with the dual disappointment of two current events that impact women and LGBTQ minorities disproportionately. It’s especially upsetting because of the way these laws are being enacted, which is to say, selectively.

First I’ll talk about RFRA, or the Religious Freedom Restoration Act (also called SB101). Governor Pence signed the bill into law on Thursday March 26, and it differs significantly from an existing federal law about religious freedom. As this Indianapolis Star article points out, the Indiana bill explicitly protects entities (not just people) that are affected by freedom of religion claims.

The ACLU notes: “a critical difference is that SB 101 would allow for-profit businesses, employees and individuals—basically anyone—to assert a legal claim or defense of free exercise of religion in a legal proceeding, regardless of whether the government is a party to the proceeding. This is virtually without precedent.”

Another key difference, according to NPR, is that “while the federal law states that a person can sue the government for a grievance, Indiana makes a point of stating that it doesn’t matter if government is involved.”

So, yes, the Indiana law differs from the federal law in its implications. As other blogs have pointed out, this isn’t happening in a vacuum: it is almost certainly a response to the broadening movement for LGBTQ rights.

The amendment to RFRA that’s been heralded as a “fix” is also quite limited: the bill “would only offer anti-discrimination protections for gays and lesbians in 11 Indiana communities where such protections already exist, legal experts say.” But, as the IndyStar article linked above goes on to point out, there are still more problems with the fix: “It exempts churches, nonprofit religious organizations and affiliated schools, as well as rabbis, priests, preachers, ministers and pastors.” That means a church could in theory turn away a homeless person seeking aid if they were part of a same-sex couple, for instance.

While on the one hand it’s a historic change for Indiana legislation to mention gender identity and sexual orientation as protected categories (even if they’re not protected throughout the entire state – something that upsets me greatly), the entire premise of RFRA is still problematic. Federal law prohibits discrimination against certain protected classes (race, religion, sex, disability, and national origin among others). However, there are plenty of identity categories not contained within those groupings nor within the limited-application nod toward LGBTQ identities within the amendment.

As this Forbes article concludes, the distinction making Indiana’s law unique “leads the way for businesses—no matter how they may be organized—to discriminate against same-sex couples or any other behavior that the business owner or operator believes offends that owner or operator’s religious beliefs.”

What worries me is that there are a lot of things people do that could be construed as offensive to someone’s religious beliefs. Just to take the religious majority as an example, for Christians, immoral identity categories might include:

  • People committing adultery (which could also mean ethically non-monogamous people)
  • Divorced people (and thus single parents)
  • People committing sodomy (whether you want to interpret that as anal sex or anything outside procreative heterosexual sex)
  • Sex workers

(Christians claim to follow a Savior who broke bread with prostitutes and tax collectors, who was criticized for spending time with immoral people in his day. Nevermind the multiple Bible verses about loving your enemy, or not judging/condemning others… which might, from one viewpoint, lead me to think that Christians are absolutely NOT supposed to deny service to certain categories of sinners, so the whole premise of the law is flawed)

Are any of these protected classes? No, but I think they should be in light of how a law like this could be selectively applied to reinforce mainstream religious views about acceptable lifestyles that don’t fall narrowly within LGBTQ identities – which, again, absolutely deserve protection.

Getting back to the topic of this blog post, the RFRA fix is ultimately unhelpful because it’s only going to affect certain geographical regions of the state. I worry that LGBTQ and other non-conforming people who are stuck in cities without prior protections will feel discriminated against or actually experience discrimination. I worry that this’ll disproportionately affect youth, who are unable to financially support themselves and just move somewhere more progressive. It’s bad enough that the rest of the country thinks of Indiana as backwards and bigoted – but now we’ve gone ahead and legislated a selective interpretation of the law as well as left loopholes for yet more types of discrimination.

In Part 2 of this post I discuss the selective application of Indiana’s feticide law.

(Thanks to Thom Root and Kathy Slaughter for suggestions with phrasing and religious context)

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