"That's a separate question that ought to be considered separate from this idea of religious liberty," Pence said Tuesday.
Some Indiana cities, including Indianapolis, have their own nondiscrimination policies. But discrimination against same-sex couples is still legal in the rest of the state, with or without the new religious-freedom law.
"The real thing that people should be focusing on is that it's already lawful in most parts of the state of Indiana to discriminate against gays and lesbians," NeJaime said. "Amending this RFRA [Religious Freedom Restoration Act] doesn't change that problem."
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But critics say the new religious-freedom law could make that already-uneven situation worse—that it could aid discrimination even in parts of the state where it was previously illegal. The state could essentially undo that damage, restoring the state's earlier status quo, even if it can't pass a statewide nondiscrimination policy.
On that front, the first step would likely be for the legislature to pass a new provision stating that state and local nondiscrimination measures trump the religious-freedom law.
Indiana's law is based on the federal Religious Freedom Restoration Act, and 19 other states also have their own versions of RFRA. Broadly, RFRA laws offer a stronger legal defense—not a slam-dunk, but a helping hand—to people who feel that a particular law or policy burdens their exercise of religion.
Some states, including Texas, have their own versions of RFRA, but don't extend them to civil rights or nondiscrimination laws. So, your religion can help you challenge other policies in those states, but you can't claim it as a defense if you violate a civil rights law.
Indiana doesn't have such a carve-out—in fact, it says that no government "statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage" is exempt from the RFRA unless the RFRA explicitly exempts it.
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That's why critics are worried that the law expands the potential for discrimination: A business owner in Indianapolis could now refuse to serve a same-sex couple, then invoke the state's RFRA and argue that it trumps the city's nondiscrimination ordinances. To be clear, he or she might lose—RFRA is a defense, not a guaranteed victory—but only only after the actual discrimination took place. (And, of course, the business owner could also win.)
"The RFRA is anticipating that someday there will be an antidiscrimination law that deals with same-sex couples. "¦ It does change the calculus in those jurisdictions, in those localities," NeJaime said.
By clarifying that the state RFRA doesn't affect nondiscrimination policies, the state could eliminate the risk of discrimination in places where it was already illegal, avoiding showdowns in the courts over which set of protections is more important.