Indiana legislators have drafted an amendment to the state’s new Religious Freedom Restoration Act (RFRA) specifically stating that no member of the public may be refused services by a private business based on sexual orientation or gender identity.
The new language would exempt churches and religious organizations from the definition of “provider,” which means churches will not be compelled to use their facilities for same-sex marriages, and pastors will not be compelled to officiate the ceremonies. Christian business owners, however, presumably would be required to provide services if asked.
The move comes after days of criticism from businesses, the NCAA, left-leaning politicians and gay rights groups who alleged the RFRA signed by Gov. Mike Pence gave legal sanction to discrimination against homosexuals. Pence said the bill only created a mechanism for the courts to test claims of conscience against state actions that could be seen as imposing a substantial burden on the exercise of religion.
Tim Overton, pastor of Halteman Village Baptist Church in Muncie, Ind., said in an interview on National Public Radio (NPR) April 2 that a guarantee of protected religious speech was what Christians were looking for in the original bill.
Indiana Supreme Court House
“I think most Americans would agree a pastor like myself should not be compelled by government to use my speech to support someone else’s perspective” regarding religious beliefs, Overton said.
“And I think that has parallels to the cake maker. The cake maker is using his or her artistic ability to make a cake, and that cake communicates something. I think that cake is speech and it says, ‘We celebrate this union.’ And to force someone who doesn’t believe that same-sex marriage is correct in the eyes of God – I just don’t think they should be forced or compelled by government to use their speech to support someone else’s perspective.”
That is why, Overton said, the RFRA was needed in the first place. As “gay rights is on the ascendancy” the state is going to have to find a way to protect religious liberty, he said.
“It is wise for the legislature of a state or the nation – as has already been done – to say if government is going to interfere in religious liberty, they need to have a very good reason to do that. They need to meet the compelling interest test. Then, if they meet it, they need to do it in the least restrictive means necessary.”
The audio and transcript of the Overton interview on NPR’s “Morning Edition” can be accessed at npr.org/2015/04/02/396976011.
Criticism of the proposed amendment mounted during the day April 2, most notably from two of the nation’s leading religious liberty advocacy organizations.
Mark Rienzi, senior counsel with the Becket Fund for Religious Liberty, said the “proposed ‘fix’ to Indiana’s RFRA” is “unnecessary.”
“Our country has had over 20 years of experience with RFRAs and we know what they do: They provide crucial protections to religious minorities,” Rienzi said in a statement.
“The key disagreement,” he noted, “is over what should happen in a very small class of cases where individuals are asked to participate in a same-sex wedding in violation of their religious beliefs. In that situation, there are two possibilities: 1) Our government can drive religious people out of business, fine them and possibly even imprison them or 2) our government can say that these religious people deserve a day in court, and that courts should carefully balance religious liberty with other competing values. The original RFRA would give people their day in court; the proposed ‘fix’ would be a green light for driving religious people out of business. Our society should not settle this issue by punishing religious people before they even have their day in court.”
Kristen Waggoner, senior counsel with the Alliance Defending Freedom, said the Indiana measure is “a good law … Surrendering to deception and economic blackmail never results in good policy.”
Indiana’s RFRA “does not pick winners or losers but allows courts to weigh the government’s and people’s interests fairly and directs judges to count the cost carefully when freedom is stake,” Waggoner said in a statement. “The new proposal unjustly deprives citizens their day in court, denies freedom a fair hearing, and rigs the system in advance. It gives the government a new weapon against individual citizens who are merely exercising freedoms that Americans were guaranteed from the founding of this country.
In an early morning press conference April 2, Speaker of the Indiana House Brian Bosma, said changes to the RFRA were necessary because “what was intended as a message of inclusion – inclusion of all religious beliefs – was interpreted as a message of exclusion, especially for the LGBT community.”
Senate President Pro Tem David Long, said the law was intended to provide a standard of strict scrutiny in cases where there were potential violations of religious liberty. But for many, he said, the timing of the law created a different perception. The revised language being introduced will “unequivocally state that Indiana’s law does not and will not be able to discriminate against anyone, anywhere at any time.”
Long also said the “calamity” and subsequent proposed amendment had shown that “religious rights and individual rights can coexist in harmony.”
Gay rights advocates, however, have said they will press for more changes to state law because the changes to the RFRA do not officially recognize homosexuals as a “protected class.”
According to the Indianapolis Star, any new legislation creating a protected class for homosexuals would be a bridge too far for Republican legislators this term. It also would not be logistically possible. In the press conference, Long said any addition to the state’s civil rights law would be a major policy shift and could not be accomplished this late in the legislative session.
Long said, however, that the discussion about adding LGBT as a protected class in the state’s civil rights statute “has begun whether Hoosiers want to have it or not.”
In fact, in the legislature’s conference committee later in the morning, Democrat Senate Minority Leader Timothy Lanane, and Rep. Linda Lawson, both argued that the RFRA should be repealed in favor of a law that adds full civil rights protections for a homosexual class. Lawson said the RFRA “is a mess,” as is the proposed amendment to the law.
Rep. Dave Frizzell, said he and members of his caucus would not support repeal and would place a new bill on religious liberty within the context of a discussion about homosexuals being made a protected class under Indiana’s civil rights code.
“If you want to have the discussion about protected status, we can do that, but not in this bill,” Frizzell said. He also said he and the other legislators with Christian convictions would continue to pray and seek guidance because “we all love the Lord and want to do what is right.”
(EDITOR’S NOTE – Gregory Tomlin is a writer in Fort Worth, Texas; Art Toalston is editor of Baptist Press.)