Remember that advice about avoiding religion and politics during dinner conversation to ward off heartburn?
It’s a good thing no one stopped to eat during the House Judiciary Committee hearing Monday. There would have been an antacid shortage downtown.
The only bill up for discussion was Senate Bill 101 — the Religious Freedom Restoration Act (RFRA) — and that discussion lasted just short of four hours.
The lines were drawn in the sand long before the hearing even began. Those standing in opposition to the bill lined the fourth floor of the Indiana Statehouse wearing red. Those in support of the bill gathered in green. The tension in the building was fueled by the passion emanating from both sides.
Rep. Tim Wesco, R-Osceola, sponsors the Senate bill in the House. His introduction of the bill included a history of religious freedom in America and how Indiana’s RFRA is intended to mirror the RFRA passed by Congress 18 years ago with some help on the specifics from the recent Hobby Lobby decision regarding contraception and the Affordable Care Act. Wesco noted the religious persecution in history of Catholics against Protestants, Protestants against Catholics and both against Baptists (Wesco is an assistant pastor at Calvary Baptist Church in Elkhart). However, all other religions outside of the scope of Christianity were not included in any of Wesco’s comments with the exception of a quick nod to Judaism toward the end. Wesco’s sermon in the House spoke to how and why religious freedom exists in America. The testimony that followed is what struck at the heart of the matter and the controversy.
The question on the minds of those skeptical or opposed to SB 101 boiled down to one thing: Would the rights to religious freedom for some (as specified in the bill) trump the civil rights of others?
Both sides of the argument came armed with academic experts. Daniel Conkle, professor of Law at the IU Maurer School of Law in Bloomington, stated that he believes the bill as it is written would not preclude human rights or be a “license to discriminate” as opponents have suggested. Robert Katz, professor of law at the IU McKinney School of Law in Indianapolis, disagreed with Conkle’s analysis, stating that it is exclusion of anti-discrimination language from the bill that is the reason why people are so fearful of the repercussions the bill might have, especially on individuals who depend on anti-discrimination laws and language for the direct protection of their civil rights and freedoms.
The notion that SB 101 would allow businesses to discriminate against potential business patrons isn’t an idea that was just pulled from space like a speck of dust floating on a sunbeam. Special interest groups Advance America and the American Family Association of Indiana have backed the bill from its inception, claiming that protections were needed for churches that did not want to perform gay weddings and for businesses that did not want to provide goods and services for gay wedding ceremonies.
Opponents believe the laws as they currently exist protect churches that do not support gay marriage in their doctrines from being forced to perform gay weddings.
But the business scenario is not just possible, but probable.
Groups like Freedom Indiana and the ACLU of Indiana believe SB 101 is a license to discriminate because it would allow for businesses and individuals to “pick and choose” whom they will and will not do business with all under the auspices of religious belief.
Katz testified that the absence of specific civil rights and anti-discrimination language from the bill would leave the law unbalanced.
“While this bill goes to great lengths to assure Hoosiers that their religious exercise will enjoy more protection, it does very little, if anything, to assure Hoosiers that the same bill will not weaken their civil rights,” said Katz.
He also gave examples of how Indiana’s Bill of Rights and Indiana Code already have religious freedoms included in its language, in some cases even stronger than federal language of similar instances. However the same cannot be said of any civil rights language. While Indianapolis prohibits discrimination based on sexual orientation by city ordinance, Indiana Code and the Indiana Constitution do not include the same language and thereby the same protections across the state.
The ordinance in Indianapolis came into place in 2010 when Just Cookies refused to make rainbow-decorated cookies for a gay student and again in 2013 when 111 Cakery refused to make a wedding cake for a gay couple.