Legal expert says Illinois 'got it right' regarding its religious freedom law
The University of Illinois' Robin Fretwell Wilson said Indiana’s Religious Freedom Restoration Act cannot be used to discriminate against gay people as many people fear.
Wilson was one of several law experts to send a letter to Indiana’s Senate Judiciary Committee in support of SB 101, Indiana’s Religious Freedom Restoration Act (RFRA). Gov. Mike Pence signed the bill into law on Thursday. It will go into effect on July 1.
“The statute has been labeled all kinds of things, and has been dragged into the whole recognition of the question of gay rights. And I just don’t think RFRA does that kind of work,” Wilson told WBEZ on Friday. “They are not really about gay rights at all, but they’ve been labeled by people on both sides as necessary to deal with gay rights, to stave off gay rights, and on the flip side, to give a license to discriminate. That’s just not what RFRAs are designed to do. They don’t really have anything to do with gay people.”
The state of Illinois adopted a RFRA law in 1998. President Bill Clinton signed the federal RFRA into law in 1993. Nineteen other states also have RFRA on the books.
What Illinois has that Indiana doesn't are other legal protections for the LGBT community.
There is fear among Indiana’s LGBT community that RFRA will give business owners the right to deny services to gay people.
Wilson said that could already happen.
“The biggest difference with Indiana is people don’t have to serve gay folks now because the law doesn’t speak to a duty to do so, except for a municipality,” Wilson said. “In Illinois, we did it right. We say that is just an unacceptable basis for denying services to folks. And then, we still have a RFRA but RFRA in Illinois hasn’t been used to take back sexual orientation protections from gays. They live together side by side.”
Wilson said RFRA is used primarily to protect minority religions from government overreach.
For example, if a state proposed banning the Amish from accessing a local road with a horse and buggy with steel wheels, the Amish citizen could use RFRA to fight back.
From Wilson’s perspective, if a business owner tries to use Indiana’s RFRA to deny services to a gay person because it may go against the business owner’s religion, the claim is likely to lose in court.
“I believe that anybody who wants to use a RFRA as a reason not to serve (gay) people will lose. (They) will absolutely lose. They are not going to prevail. We haven’t seen people prevail on those grounds nowhere in the country,” Wilson said. “To say that all of a sudden, that a RFRA will become this back-pocket veto of a discrimination statute I think is just wrong.”
Wilson said what’s causing some to believe Indiana’s RFRA could be used to discriminate is that some religious people in Indiana think it can be used in that fashion.
“You get these religious leaders who say we have to have RFRA to keep gay rights in check,” Wilson said. “Folks on the other side are going to say ‘what the heck, that’s a license to discriminate.’ I think both sides just fundamentally misunderstand what these statutes are designed to do.”
Jennifer Pizer, senior attorney with Lambda Legal, a law firm representing gay rights, said there is much concern about the bill.
“The LGBT community is very worried about this bill because Indiana does not yet have the basic non-discrimination protections that they need,” Pizer told WBEZ this week.
And those protections are what U of I law professor Robin F. Wilson said Indiana should adopt.
“You need statewide laws that protect lesbian, gay, bi-sexual and transgender people from discrimination in housing, hiring and public accommodations like in restaurants,” Wilson said. “As I understand it right now that’s not true in Indiana. I think that’s just terrible.”
Some speculate that the Republican-dominated Indiana General Assembly passed RFRA to retaliate against a federal court-mandated last year that it must recognize same-sex marriage.
When asked this week if he would push for protections for gay people in Indiana, Pence said that was not on his agenda.
But Pence denied the law is about the ability to discriminate. He said the media was to blame for the misinformation about the bill.
“This bill is not about discrimination and if I thought it legalized discrimination in any way I would have vetoed it,” Pence said at a press conference on Thursday shortly after signing the bill into law in private and without media present. “It does not apply to disputes between private parties unless government action is involved.”
Meanwhile, the use of the hashtag #boycottindiana is spreading across Twitter, spurred on by activists such as "Star Trek" actor George Takei, who argued that the measure opens the door to legalized discrimination against gay people. Apple CEO Tim Cook also tweeted his objections, saying he was "deeply disappointed" in the Indiana law.
White House press secretary Josh Earnest on Friday noted the negative reaction to the Indiana law from many businesses and organizations around the country.
"The signing of this bill doesn't seem like it's a step in the direction of equality and justice and liberty for all Americans," he said.
There is also growing concern about the impact of the law on tourism in Indiana. Next weekend the NCAA men’s basketball Final Four will take place in Indianapolis.
The president of the NCAA Mark Emmert, which is based in Indianapolis, said in a statement that the law could affect future events in the state capital.
“The NCAA national office and our members are deeply committed to providing an inclusive environment for all our events. We are especially concerned about how this legislation could affect our student-athletes and employees. We will work diligently to assure student-athletes competing in and visitors attending next week’s men’s Final Four in Indianapolis are not impacted negatively by this bill.”
Indianapolis Mayor Greg Ballard, a Republican who opposed the law, said he and other city officials would be talking to many businesses and convention planners to counter the uproar the law has caused.
"I'm more concerned about making sure that everyone knows they can come in here and feel welcome," Ballard said. "That's what I'm mostly concerned about."
Groups such as the Indiana Chamber of Commerce have taken to social media with messages that the state is full of welcoming businesses. Democratic South Bend Mayor Pete Buttigieg touted on Twitter his city's civil rights ordinances offer protections for gays and lesbians, while Republican Evansville Mayor Lloyd Winnecke wrote that the law "sends the wrong message about Indiana."
Stickers touting "This business serves everyone" have been appearing on business windows in many Indiana cities.
Chris Gahl, a vice president of Visit Indy, told WBEZ this week he too is concerned about the impact of the bill but said Indiana is a welcoming state.
The Associated Press contributed to this story.
Correction: An earlier version of this story misstated the name of NCAA President Mark Emmert.