When Indiana Gov. Mike Pence signed a new state law that allows people and companies to claim a religious objection to doing business with same-sex couples, he pointed to Illinois and Kentucky, saying he was simply bringing the state in line with its neighbors.
But the Republican governor and possible presidential contender left out an important fact. While Illinois does have a law that gives special protections to religious objectors, it also bans discrimination based on sexual orientation. Indiana, on the other hand, has no such ban.
That distinction is crucial, legal experts say, because anti-discrimination laws are considered stronger than religious exemptions.
Still, the action in Indiana has revived a debate over whether wedding planners, caterers, photographers or pastry chefs in Illinois who object to same-sex marriage on religious grounds can use the law to justify refusing services to same-sex couples.
It’s an issue that came up in 2013 when Illinois legalized gay marriage and included a narrow exemption for clergy and places of worship but said nothing about businesses that serve the general public.
Critics of the marriage bill expected a flurry of lawsuits from people claiming violation of their religious liberties. But 10 months after the law took effect, experts on both sides of the issue could not point to a single lawsuit.
There is one matter that predates the marriage law and is still pending at the state’s Human Rights Commission. That case involves a downstate bed-and-breakfast that in 2011, before the marriage law was enacted, refused to host a gay couple’s civil union ceremony.
The bed-and-breakfast argued that the state’s anti-discrimination law violates the company’s rights under the state’s Religious Freedom Restoration Act, as well as Illinois and U.S. constitutions.
Michael Theodore, a spokesman for the commission, said the case is before an administrative law judge.
“There isn’t a lot of legal precedent on these types of cases, so we need to ensure that we conduct a thorough examination before coming to a decision,” Theodore said.
The religious laws in Indiana and Illinois don’t single out same-sex couples or gay marriages. But passage of the law in Indiana, after a federal court recently struck down the state’s ban on same-sex marriage and as the U.S. Supreme Court prepares to rule on gay marriage bans in other states, is widely viewed as a political reaction to the shifting social climate.
Backers and critics of the religious exemption law agree on one thing: Except in the dozen or so Indiana municipalities that ban discrimination based on sexual orientation, Indiana businesses are already allowed to refuse services to same-sex couples, whether or not they have a religious reason.
“Unless there’s a law forbidding it, then businesses are free to select their clientele,” said Daniel Conkle, a professor at Indiana University Maurer School of Law. “Maybe people are worried about it in Illinois, that somehow the law gives an automatic pass to religious objectors who simply assert a religious objection against the operation of the law. It doesn’t work that way at all.”
Religious freedom laws prohibit governments from “burdening” a person or a company’s exercise of religion unless that burden furthers a “compelling” government purpose. Such laws are generally intended to carve out narrow exemptions for groups like the Amish, whose religious beliefs are sometimes at odds with regulations that have emerged in modern times.
Peter Breen, an attorney with the Thomas More Society, a socially conservative legal group, said the Indiana law had little to do with same-sex marriages.
The law was dubbed the “Hobby Lobby bill” when it was being debated in Indianapolis, Breen said, because it was a reaction to the federal government’s failed attempt to force Hobby Lobby to provide contraceptive coverage for its employees. That case went to the U.S. Supreme Court, which ruled that some private companies could be exempted from part of a federal law because of the religious beliefs of their owners.
“It is certainly not a license to discriminate,” Breen said.
One Illinois example that Breen said illustrates the purpose of the law was the case of a family pharmacy that didn’t want to comply with a state law that required the pharmacy to sell pills that could cause early abortions.
Robin Fretwell Wilson, a University of Illinois law professor who has followed debates on similar laws in other states, said the religious exemptions serve a purpose but get “badly demagogued on both sides.”
“You have a moment of great social change,” Wilson said. “And people latch onto a (religious freedom law), thinking this is a device to protect themselves from social change.”
@kimgeiger
